Industry experts don't advise calling behaviour 'serious misconduct'
An employee who was dismissed following "multiple warnings" has been reinstated because the employer failed to enumerate and cite the causes in its termination letter.
The Fair Work Commission (FWC), in ruling over the case, found this to be unfair and ordered the employee be given her job back.
“The employee was not aware this was one of the reasons the airline was considering termination, and consequently did not have an opportunity to put her response to this issue in the process,” the Victorian Chamber of Commerce and Industry (VCCI) said in a news release.
“Where an employer is relying on prior warnings or objective evidence such as customer complaints or performance data, it is prudent to raise these and hear an employee’s response,” it added.
Following the case, what are some key issues that add to the risk of HR being cited for unfair dismissal of employees?
According to the VCCI, a termination letter is a vital tool for employment termination as it provides concrete evidence that the worker was informed of the reason for dismissal.
Without the letter, the Victorian Chamber noted that it could lead to an unfavorable outcome, as the employee can argue that they were not adequately notified of the dismissal.
“It is much simpler when this has evidently occurred,” VCCI said. “The employee will often attach the letter to their claim, which helps ensure the employer’s position is clear before they have even responded.”
While template letters are great starting points rather than staring at a blank page, the Victorian Chamber noted that the FWC requires more than the outline.
“In deciding an unfair dismissal claim, the FWC needs to establish whether the employee was advised termination of their employment was being considered, had an opportunity to influence the outcome, and their views were genuinely considered,” the Victorian Chamber said.
Among the key points that could be included in the termination letter are a brief summary of the employee’s opinions and a short response to those points so that the employee still feels recognized and understood, which could also help to reduce the risk of a claim.
“Including evidence of a discussion about the proposed dismissal helps ensure clarity that the employee had a genuine opportunity to respond and influence that decision and that the employer didn’t simply arrive at a ‘dismissal’ meeting with their mind already made up,” VCCI noted.
Employers often feel aggrieved during termination as they believe they have invested “a lot of time and energy” into the employee.
As a response, employers are tempted to label the behaviour of an employee as “serious misconduct,” “summary dismissal,” or “gross misconduct,” without knowing that there is a specific legislative definition of serious misconduct that requires a “very high bar to meet,” according to VCCI.
“An employer who labels the termination simply ‘misconduct’ and pays any relevant notice period doesn’t have to prove the issue rose to the level of ‘serious misconduct’ and is on much safer ground,” VCCI noted.
The Victorian Chamber further explained that the FWC also considers “any other matters” that are deemed relevant, such as a worker’s length of service and employment record.
“Previous Commission decisions tell us there are factors they expect an employer to consider in deciding a disciplinary outcome,” VCCI said.
“Even if those factors did not change the decision, it is important they are noted in the termination letter, as this also acts as evidence of having given full and proper consideration to the matter,” it added.
