Evidence of a worker's serious misconduct, no matter how strong, is no guarantee an on-the-spot dismissal will be considered fair in court, according to a lawyer.
Summary dismissals continue to "trip businesses up" and can create risk even when the misconduct is incontrovertibly serious, practice group leader for employment and workplace relations at Hynes Legal, Kristin Ramsey, tells an HR Daily Premium webcast.
Numerous cases show employers with grounds to terminate for serious misconduct being convicted of unfair dismissal because of deficiencies in the termination process, she says.
"The biggest mistake I see is that businesses think that as soon as they have evidence of serious misconduct, they can simply terminate on the spot, and they don't need to follow as robust a termination process as perhaps they would do in other circumstances."
Employers must beware of mistaking misconduct for serious misconduct, Ramsey says.
"You always have to go back to [the Fair Work Act]. Can we say this is wilful or deliberate behaviour inconsistent with the continuation of the employment, or conduct that causes a serious risk to health or safety or to the business's reputation, finances, etc? Not all conduct that is misconduct will meet that test."
Poor attitude didn't justify summary dismissal
A Fair Work Commission decision involving a Paramatta Rugby League Club business development executive highlights the risk of overestimating the threshold for serious misconduct.
Problems began when a senior manager instituted a new staff kitchen roster that shared duties between different departments, Ramsey says. Upon seeing he was on the roster, the executive emailed his manager complaining and refusing to participate. The employer issued him with a warning for failing to show adequate respect for his superior and refusing to comply with a lawful and reasonable direction.
The "straw that broke the camel's back", however, was a series of emails about an unpaid invoice, she notes.
Following a client golf day, the executive submitted an invoice from the venue to the accounts department for payment. When the venue contacted him because it hadn't been paid, he emailed the venue, copying in employees from the accounts department and a number of managers, apologising and saying everything had been authorised from his end, so the invoice should have been paid months ago.
The executive's intention to lay blame on his colleagues was clear, Ramsey says.
The executive was rebuked for disrespecting his colleagues, damaging both their reputation and the organisation's, exhibiting an ongoing pattern of behaviour that frustrated the implied term of mutual trust and confidence, and inappropriately blaming the accounts department when it was he who didn't enter the invoice in the system properly.
The executive denied any wrongdoing and when his employment was terminated for serious misconduct, he lodged an unfair dismissal claim.
Ramsey notes the Commission found the executive's conduct did constitute a valid reason for dismissal, and that the employer's process was procedurally fair, but the dismissal was deemed harsh.
"The conduct was at the lower scale of seriousness... It demonstrated [the employee] had a poor attitude, but that it didn't amount to serious misconduct and therefore summary dismissal was disproportionate in the circumstances," she explains.
This case shows the threshold for misconduct is high, she says.
"The Commission found [the employee's conduct] was not wilful or deliberate conduct. It didn't create a risk to health and safety, and whilst there was the potential for some reputational damage with the individuals in the accounts department and the organisation as a whole, that wasn't a serious risk... and therefore the punishment didn't fit the crime."
Ramsey recommends employers work backwards to determine whether summary dismissal will be upheld if challenged. "Say: well if this matter ends up before the Fair Work Commission – because that is the main risk – what will the Fair Work Commission want to see? What will they look at? What questions will they be asking?"
The FWC essentially follows a four-part process, she adds. It starts by asking whether the conduct occurred, and if that seems likely, whether it constituted a valid reason for dismissal. It then considers whether the employee was afforded procedural fairness, and considers any mitigating circumstances.
In the webcast, Ramsey outlines other common termination mistakes, eight best-practice tips for the dismissal process, and more – upgrade here for access if you're not already an HR Daily Premium member.