Understanding Dismissal and Serious Misconduct in the Workplace.
There can be extreme circumstances in a workplace where an employee needs to be reprimanded, sanctioned or in the worst cases dismissed. Before any of these can happen though, the employer needs to prove the allegations made against the employee and the employee has a right to procedural fairness to share their side of the story. In the most extreme cases, a worker’s employment can be terminated instantly, but they still have a right to procedural fairness.
What is a Summary Dismissal?
This is essentially dismissal without notice. The employment is terminated without warning and wages cease to be paid from the moment a Summary Dismissal is executed. A Summary Dismissal is enacted when an employee has engaged in Serious Misconduct.
What is Serious Misconduct?
Employers have rights under the Fair Work Act to issue a Summary Dismissal where there has been Serious Misconduct which is classed under Fair Work Regulations as actions that include:
- Willful or deliberate behaviour that is inconsistent with the continuation of the contract of employment
- Activities or actions that could lead to risk or serious harm to either an individual or the reputation of the company
These can include theft, assault, the use of drugs or alcohol or refusing to carry out reasonable duties outlined in their contract of employment.
While an employer has the right to instantly dismiss employees for serious misconduct, these employees also have the right to a fair hearing if they believe that the allegations made against them are false or unreasonable. That is where an appropriately qualified and independent workplace investigator can assist help mediate and manage this procedural fairness process.
The workplace investigator role
When an employee has been dismissed and requests a hearing, it is imperative that a comprehensive independent investigation be carried out. This includes interviewing witnesses, gathering evidence and producing all of the physical evidence and documentation to support the objective of procedural fairness. For employers, it is critically important to participate and support this process by ensuring the availability of witnesses and providing any supporting policies, procedures or other relevant documentation.
In some cases, the level of Serious Misconduct is obvious and any investigation or review can be a fairly straightforward process. If a worker has clearly been drunk or under the influence of drugs and has returned positive readings to tests, there is little room for them to dispute this fact. If they have assaulted someone in the workplace and this was witnessed or caught on camera, then they have little recourse as well, although proper and due process must be followed when taking any action.
Unfortunately, instances of fraud and cybercrime are on the rise and these instances of Serious Misconduct are often sophisticated and less simple to prove.
By engaging Precise investigation, businesses can tap into over 30 years of industry experience that will not only strengthen any Summary Dismissal case, but also ensure proper and thorough procedural fairness is observed when gathering evidence that will enhance an employer’s position should the matter proceed before the Fair Work Commission.
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