Can an employer justify a dismissal after it occurs?

1. the failure to follow the lawful direction to return Council property;

2. the fact the employee was charged with an offence; and

3. facts discovered after the decision to terminate (ie the employee subsequently pleading guilty to the charges).

The Commission did not accept the Council’s second argument but accepted the first and third. It found the fact that the employee was convicted of the theft of Council property after pleading guilty caused him to fatally compromise his employment contract such that the Council was justified in terminating his employment. The Commission relied on the longstanding proposition of law that the dismissal of an employee may be justified upon grounds on which the employer did not act, and of which the employer was unaware when the employee was terminated.

HR Tips: Before terminating an employee’s employment (particularly those who have access to unfair dismissal laws) an employer should ensure that it:

• has evidence to support its decision;

• has afforded the employee procedural fairness in the process;

• has considered whether termination is the appropriate sanction for the employee’s conduct having regard to severity of the conduct and the employee’s employment record.

However, an employer should not ignore evidence available prior to termination. If any employer doesn’t rely on a known fact at the time of termination the employer will not be able to rely on it later.

Failing to meet return-to-work obligations is costly

The case of Iliff v Sterling Commerce (Australia) Pty Ltd shows the necessity for employers to ensure they do not discriminate against employees on the basis of pregnancy.

Mrs Iliff had worked for the employer for more than 2 years before going on maternity leave. When she attempted to return to work, her request was denied and she told her position no longer existed and that she was to be made redundant, with her redundancy payment conditional on signing a deed of releasing the employer from all liability in relation to any claims in relation to her employment. Mrs Iliff did not sign the deed and never returned to work and did not receive the redundancy payment.

Mrs Iliff subsequently brought a claim in the Federal Magistrates Court alleging, among other things, that the employer had:

• discriminated against her on the basis of maternity leave by requiring her to sign the deed to receive the redundancy payment when, in similar circumstances, such a requirement would not have been imposed had she not been on maternity leave; and

• breached its obligations under the Workplace Relations Act (“the Act”) to return her to her pre-maternity leave position.

The Court agreed with Mrs Iliff and found that such conduct amounted to sex discrimination because if Mrs iliff had not been a woman she would not have been on maternity leave and if she had not been on maternity leave, the employer would not have required a release from her in order for her to be paid the redundancy benefits. The Court also found that the employer breached the return-to-work provisions contained in the Act.

HR Tips: Employers should ensure they comply with their obligations under the Act to return an employee to work after a period of maternity leave: to the position they held immediately before commencing leave, or if that position no longer exists and there are other positions available for which the employee was qualified and capable of performing, to that position.

If any employee’s position becomes redundant whilst they are on maternity leave, consultation should occur at the time the redundancy arises, NOT when they are due to return to work. If the employee does not wish to be made redundant, their employment should not be terminated unless there is no other position available which the employee is qualified and able to perform.

By Beth-Marie Kitchener, solicitor, Australian Business Lawyers