By Paul Munro, IR Consultant
WorkplaceInfo
Human resources management is often faced with the dilemma of what constitutes unfair dismissal. This issue was raised in a recent enquiry on the WorkplaceInfo website.
Question
"We are currently reviewing our company policies and procedures to ensure compliance with the conditions introduced earlier this year by the Fair Work Act 2009 and the National Employment Standards (NES).
Our disciplinary procedure currently refers to an employee receiving a verbal warning initially, then a three written warnings, after which a dismissal will occur.
While the Act identifies factors that Fair Work Australia (FWA) take into account when determining the harshness of a dismissal, it makes no mention of an appropriate disciplinary procedure.
Because our company employs over 100 employees, we are not subject to the Small Business Fair Dismissal Code.
Is there an accepted disciplinary process that could be an effective defence for an employer in an unfair dismissal matter before FWA?"
Answer
The unfair dismissal provisions of the Act are based on the principle of a 'fair go all round'. However, the Act is not prescriptive with respect to a 'standard' disciplinary procedure.
The fairness of a disciplinary procedure has generally been determined by precedent case law as applied by various industrial courts and tribunals.
The company's current disciplinary procedure would appear adequate on the issue of 'procedural fairness', although an employee must be given a reasonable chance to rectify the problem before a subsequent warning is issued — this may involve counselling the employee or providing additional training.
While a warning plays a critical role in the context of the fairness, or otherwise, of an employee's dismissal, other important matters may need to be applied in addition to an appropriate warning procedure.
Dismissal criteria - harsh, unjust or unreasonable?
Section 387 of the Fair Work Act identifies the criteria that FWA must take into account when determining whether a dismissal was harsh, unjust or unreasonable. These matters include:
- whether there was a valid reason for the termination related to the employee’s capacity or conduct
- whether the employee was notified of that reason
- any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal
- if the termination related to unsatisfactory performance by the employee, whether the employee had been warned about that unsatisfactory behaviour before termination (disciplinary procedure)
- the degree to which the size of the employer's business would be likely to impact on the procedures followed in effecting the termination
- the degree to which the absence of dedicated HR personnel would be likely to impact on the procedures followed in effecting the termination
- any other matters that FWA considers relevant.
The disciplinary procedure is not unbreakable in that certain types of misconduct could alter the procedure by issuing (say) a final written warning to the employee. However, in the normal course of events, failure to warn an employee that their conduct or behaviour may lead to dismissal would be considered a major omission by FWA.
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