It is common practice for an employer to take steps to summarily dismiss an employee in the event of misconduct or serious misconduct. In fact, most employment contracts permit an employer to do so.

Misconduct or serious misconduct in the workplace includes theft, fraud, dishonesty, offensive behaviour, breaching health and safety rules, damaging property and attending work while under the influence of alcohol or illicit drugs.

No matter how serious an employee’s conduct may appear, employers need to be mindful of the steps they should consider taking to avoid facing an unfair dismissal claim, general protections claim, discrimination/equal opportunity claim, breach of contract claim or workers’ compensation claim. These steps will often be set out in the employee’s contract or the policies, procedures and Enterprise Agreement covering the terms and conditions of their employment.

Even in the face of misconduct or serious misconduct an employee is entitled to procedural fairness in accordance with the principle of natural justice.

Step 1 – Proper Investigation 
Firstly, the employer should conduct a proper investigation into the allegations of misconduct or serious misconduct. It is preferable for the investigation to be conducted by a qualified and independent investigator who can consider all of the available evidence and form an impartial view before making findings as to whether or not the misconduct or serious misconduct is substantiated.

During the investigation process, the employee should be permitted to bring a support person to any interviews or meetings and the employer should also offer them access to an employee assistance program or other support program for counselling if necessary.
It is also acceptable for the employee to be suspended from attending work (at their usual rate of payment) during the investigation process.

Step 2 – Opportunity to Respond 
Regardless of how much evidence the employer has before them substantiating the employee’s misconduct or serious misconduct, the employee should be given a reasonable opportunity to respond to that evidence and the allegations against them.

The employee should firstly be invited to respond to the evidence and the allegations against them during the initial interview or meeting and within a reasonable period of time after the initial interview or meeting (for example, 7 days after the interview or meeting). This also allows the employee time to obtain representation if necessary.

A court is likely to criticise an employer who does not provide their employee with a reasonable opportunity to respond to the evidence and allegations against them either verbally or in written submissions.

Step 3 – Consideration of Response 
The employer needs to carefully consider the employee’s verbal or written response to the evidence and allegations of misconduct or serious misconduct.

Again, it is preferable to appoint a qualified and independent investigator to consider the response in order to form an impartial view as to whether the findings of misconduct or serious misconduct can be maintained notwithstanding the employee’s response.

Step 4 – Show Cause 
Once the employer is satisfied that the findings of misconduct or serious misconduct can be maintained, a show cause letter should be issued to the employee.

The purpose of the show cause letter is to set out the findings of misconduct or serious conduct and ask the employee to ‘show cause’ (i.e. explain) why he or she should not be subjected to any disciplinary action.

Step 5 – Termination and next steps 
If steps 1 to 4 as outlined above have been followed, an employer should be able to satisfy the requirement that the termination of an employee’s contract is not ‘harsh, unjust or unreasonable’. This is the standard required at law.

In a recent decision of the Fair Work Commission¹, it was determined that an employee (a hospital security guard) had breached the employer’s protocol due to his treatment of an  absconding mentally ill patient. The Commission also determined that the employee’s misconduct was a valid reason for his termination. The pressing issue however was that the employer had not followed the disciplinary process set out in the employee’s Enterprise Agreement and therefore the termination was found to be disproportionate to the misconduct and ‘harsh and unreasonable’ under the circumstances.

Within a medical practice setting, if the employee is a patient of the practice, terminating the therapeutic relationship between the practice and an employee terminated for misconduct or serious misconduct may also be necessary, particularly in the event that the employee commences legal proceedings against the practice flowing from their dismissal.

Take home message 
If you are an employer and considering the immediate dismissal of an employee for misconduct or serious misconduct, proceed with caution and contact our Claims and Legal Services Department for support to avoid exposing yourself to legal proceedings.

¹ Scott v Latrobe Regional Hospital [2019] FWC 5680

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