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Monday 24th August 2015
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Armed with a gun and a hot dog – is it a sacking offence?
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In today's Workplace Bulletin:
- Unfair dismissal under the Fair Work Act – what’s unjust, what’s unreasonable and what’s harsh
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Dear Reader,
The employee in today’s case was literally caught ‘red-handed’.
During his shift, the ATM technician, Patrick Peterson, purchased himself a hot dog from the food court at the plaza he was servicing, and sat down for five minutes to eat it before using the public toilets (presumably, to clean all that ketchup off his hands). |
The whole time, he had his firearm on him.
And another employee he was working with during that shift lodged an incident report with their employer, TCB Trading, insisting he had disregarded the business’s safety requirements.
Mr Peterson was dismissed from his employment without notice, and he lodged an unfair dismissal claim.
So what do you think – was it a stupid move that warranted the sack, or an unjust, unreasonable or harsh act on behalf of the employer?
Read on… |
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When you decide an employee has to go, you need to be certain your dismissal process islegal and fair.
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The Fair Work Commission’s findings
In its judgment (Peterson v Security Logistics Australia Pty Ltd and others[2015] FWC 5402), the FWC held that the employee had indeed been unfairly dismissed.
Let’s leave aside the question of whether eating while armed in a public place is sensible or safe.
Because the reasons why the dismissal was unfair are a regular pick ‘n’ mix of things an employercan avoid – and in this case, didn’t.
These include:
- Denying the employee’s request to have a support person present. TCB said it believed that he had already found himself new employment and on this mistaken basis declined this.
- Relying on the incident report of a co-worker who was not actually present for the alleged misconduct (the co-worker was waiting in a company car for the employee to return from the plaza).
- TCB claiming they had a Standard Operating Procedures for employees that the employee should have read and been aware of – which the employee denied ever seeing. Fatally, TCB couldn’t produce this Standard Operating Procedure as evidence before the FWC. Whether they didn’t have written policies and procedures for employee conduct at all, or whether they just couldn’t find where they were when the time came, you’ll agree it’s not a good look.
- Dismissing Mr Peterson when other employees who had gone shopping for themselves in a supermarket in a similar lapse of judgement hadn’t been dismissed.
The employee and employer will meet again in the FWC later in the year for a decision on compensation.
Unjust? Unreasonable? Harsh? All of the above?
Any of the elements of the case I’ve described could have made it an unfair dismissal.
Generally, it’s a mistake to rely solely on another complaining employee’s hearsay. They need to have seen misconduct with their own eyes.
Claiming that an employee ‘knew the rules’ when you can’t point to a written version of those rules will create an uphill battle for you as well, unless the misconduct is exceptionally serious (e.g., criminal behaviour).
Treating employees unequally for similar disciplinary situations will certainly raise a Commissioner’s eyebrows, and can also open you up to charges of discrimination.
And employees are virtually always entitled to bring a support person into a meeting if they want one.
This meant that poor TCB managed to hit the unholy trinity of being unjust, unreasonable and harsh.
So what do those three terms – which crop up in every single FWC unfair dismissal decision – mean?
Overlapping concepts
If they seem like words that might overlap in everyday life – how often is a ref’s call unjust, harsh, or something ruder still? – they also overlap when the law is applied to the facts of an unfair dismissal.
But, as a general rule, you can think of these three elements this way:
An unjustdismissal is one where the employee is not guilty of the alleged misconduct which the employer alleges. Beware – if a dismissal is considered unjust, it will almost certainly mean a loss for you and a loss for the employee.
In today’s case, Mr Peterson’s employer said he was dismissed without notice because he knowingly breached company procedures. But without any written record of those procedures, it was impossible to convince the FWC that Mr Peterson’s knowingly breached anything.
An unreasonabledismissal is one that is decided on inferences which could not reasonably have been drawn from the material before the employer. In other words, how you go about investigating an allegation of misconduct will influence whether an eventual dismissal reasonable or unreasonable.
If you just go on another employee’s hearsay about misconduct – and if you don’t give an employee a fair opportunity to consider and respond to those allegations – your actions could be considered unreasonable.
And a harsh dismissal is one in which the act of terminating employment is disproportionate to the gravity of an alleged offence.
A dismissal can also be harsh because of the personal and economic consequences to an employee – though this won’t count for much if the misconduct is serious.
This means there are three broad areas to consider before you dismiss someone for misconduct – and even then, it’s only one part of the picture.
Deciding between summary dismissal and a period of notice, determining how notice will be given and served, and calculating lawful termination pay are each essential parts of the equation.
To make sure you’re meeting all your obligations – and to get the templates you need to meet them quickly and cheaply – be sure to consult our new e-book,Managing Lawful Dismissal.
Until next time,
Joseph Nunweek
Editor,Workplace Bulletin
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