A question asked many times by clients is when a scenario involving serious misconduct is put to us – can we now terminate their (the employee’s) employment? Our response (with some adjustment) is usually – “of course you can – you are the Employer, however the key question really is – what would happen if you had to explain your actions to a Judge or a Commissioner – what would they say according to law?”
What is Serious Misconduct?
Serious Misconduct is defined by the Fair Work Regulations – this legislation alongside relevant case law considers serious misconduct to be:
The Risk in Terminating Employment for Serious Misconduct (without procedural fairness)
It is completely understandable for an Employer to immediately terminate the employment of an employee who has engaged in obvious serious misconduct. However the Fair Work Commission, Queensland Industrial Relations Commission, Federal Court and other Courts and Tribunals are littered with cases where the Employer had a valid reason for the dismissal but the lack of procedural fairness had become their undoing.
Take a recent case of Nathan MacDonald v Whitehaven Coal Mining  FWC 838 this involved an employee dismissed for a serious safety breach.
In this case the Commission ultimately found there was a valid reason for the dismissal. However, it took issue with the rejection of the extension of time to provide a response. Holding that it was unreasonable to do so and not doing so led to procedural fairness issues.
25 weeks pay was ultimately awarded to the employee.
2 Prime Ways to Mitigate Risk and Liability
Are you about to terminate an employee for serious misconduct – discuss the implications with an Employment Lawyer first - give NB Lawyers – Lawyers for Employers a call and we can offer an obligation free consultation to work through some of the steps worth taking. Reach out via firstname.lastname@example.org or +61 (07) 3876 5111 to book an appointment.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
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