Australia’s workplace laws are governed by the Fair Work Act 2009 (Cth). Under s 386 of this Act, an individual is considered dismissed from their employment either when they have been dismissed at their employer’s initiative, or were forced to resign as a result of the conduct of their employer.
Individuals can be dismissed for engaging in misconduct in the workplace, as long as the reason for dismissal is valid. Dismissal for misconduct usually occurs when the employee breaches company policy or a reasonable and lawful direction lawful direction of their employer.
For example, in Woolworths Limited (t/as Safeway) v Brown, a butcher was dismissed after refusing to follow a lawful direction from his employer to remove his eyebrow ring at work.
Another example is Atfield v Jupiters Limited, wherein a casino employee was dismissed after breaching company policies against gambling whilst at work.
Other employees have been treated with more leniency for the same issue
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It is very rare that an employee’s out of hours conduct will give their employer a valid reason to terminate them. Private activities of individuals will usually be beyond the scope of employer regulation, unless the out of hours conduct is relevantly connected to the employment relationship.
According to Rose v Telstra, an employer may have valid reason to terminate the employee if the out of hours conduct involves one of the following circumstances:
The conduct can objectively be considered to cause serious damage to the employment relationship.
However, if there is no connection between the out of hours conduct and the individual’s employment, including something as serious as criminal offences, it is unlikely that the reason for dismissal by the employer would be valid.
These elements are required to establish serious misconduct as a cause for dismissal. It is not sufficient that the act or omission was intentional, but also that there was serious and imminent risk to a person or the employer directly as result of that conduct.
For example, in Lengkong v Bupa Care Services Pty Ltd t/a Bupa Morphettville, an employee failed to sufficiently report on an injured patient. Although this omission was wilful and inconsistent with employment, as it is a policy to do so, the omission was inadvertent and did not cause any risk to personal welfare or the employer’s interests.
If an employee has been dismissed for serious misconduct, the employer is not required to pay them notice (summary dismissal)
Just as with misconduct, the alleged serious misconduct must be a valid reason for dismissal. That is, the reason for dismissal must be ‘sound, defensible or well founded’.
If the employee alleges that they did not engage in the serious misconduct the employer is claiming they did, the employee may have an unfair dismissal case, especially if the employer is not able to provide any evidence of the alleged serious misconduct. For example, in Black and Santoro v Ansett Australia Limited, employees were dismissed due to them being alleged to have stolen alcoholic beverages from the company. However, the employer could not show evidence to prove this, and it was found that there was no valid reason for the dismissal. Black and Santoro also found that the standard of proof for serious misconduct must not only consist of ‘mere conjecture, guesswork or surmise’. That is, the employer cannot terminate an employee for simply assuming, without complete information, that the employee engaged in the alleged serious misconduct.
However, even if an employee has engaged in serious misconduct leading them to be dismissed, if the dismissal is objectively deemed a harsh response to the conduct, the employee may have a valid case for unfair dismissal.
The employer must prove that the employee engaged in serious misconduct on the balance of probabilities – that is, it is more likely than not. However, the stronger the allegations against an employee, the stronger the evidence the employer may need to provide to validate the reason for dismissal.
Moreover, the employer is not permitted to pursue illegal means to gather evidence against the employee. For example, in Walker v Mittagong Sands Pty Limited, this could involve the employer interfering with the employee’s personal property, which may be considered trespass to goods. Therefore, any evidence against found while engaged in illegal activity is thus not permissible in establishing a reason for dismissal.
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An employee may be dismissed for fighting or assault, which would usually be classified as serious misconduct. Firstly, physical violence is deliberate and not tolerated in the workplace (first element), and secondly, fighting or assault may threaten the health and safety of a colleague and may also tarnish the company’s business interests (second element).
More often than not, if an employee has engaged in fighting or assault in the workplace, the employer would have a valid reason to dismiss them. However, the occurrence of the alleged assaults must be proven to give valid reason for dismissal.
For example, in Dewson v Boom Logistics Ltd, it could not be proven that the dismissed employee actually committed the alleged assaults, and thus their dismissal was not for a valid reason.
However, the reason for dismissal may not be valid if an extenuating circumstance is present in the situation. If so, the employee’s dismissal may be considered harsh, unjust or unreasonable, meaning they may be eligible to make an unfair dismissal claim in the Fair Work Commission (which can be lodged with the assistance of representation – call 1800 333 666).
An employee may be dismissed if the employee’s conduct or capacity affects the safety and welfare of other employees. This is usually classified as serious misconduct.
An employee can be dismissed on this basis if their conduct was deliberate or wilful and posed a risk to the health and safety of other employees. Usually, Occupational Health and Safety (OHS) standards will have been breached.
If there has been a breach of safety, the dismissal will likely be valid.
An employee can be dismissed if there are serious issues with their performance, which includes ‘factors such as diligence, quality, care taken and so on’.
If the performance of an employee has been substandard and unsatisfactory, the employer should provide the employee with a warning (written or verbal) before terminating them. However, contrary to popular belief, there is no specific number of warnings an employee must receive before they are dismissed.
Moreover, is not enough for an employer to terminate an employee merely because they have lost trust and confidence in the employee’s ability to perform their role. Just like with all other reasons for dismissal, the employer must have adequate reasoning and evidence for their assertion that the employee is now unable to perform their role sufficiently.
An example of how trust and confidence can be destroyed, and the dismissal thus valid, is dishonesty. In Streeter v Telstra Corporation Limited, an employee was consistently dishonest in a disciplinary interview, claiming that the events in question had not taken place, though later conceded that they had. The employer was deemed to have reasonably dismissed the employee because their dishonesty meant that they could not be trusted to be honest in the future. Another example is that of Woodman v The Hoyts Corporation Pty Ltd, in which an employee was dismissed for stealing and dishonestly denying it. Although the theft was negligible, the dishonesty involved meant that trust and confidence in the employee was lost.
An employee may be dismissed if they are not able to perform the inherent duties of their position (‘incapacity’)
Only the ‘substantive position or role’ of the employee is to be considered in assessing whether the employee is incapacitated. That is, for the employee to be dismissed on this basis, they must be unable to perform the duties for which they were employed to fulfil. However, if the employee is unable to fulfil duties have been altered, or they have been required to temporarily fulfil another position, this inability to perform outside their ordinary position is not a valid reason for dismissal.
An employee may be dismissed for abandoning their employment. An employee is deemed to have abandoned their employment if they stop attending their workplace, without an explanation or valid excuse.
In such circumstances, dismissal at the employer’s initiative is valid because in not attending work, the employee has demonstrated that they are unwilling or unable to substantially perform their employment obligations, as per their contract. Even though the employer is choosing to terminate the employee, the conduct of the employee is the one that ends the employment relationship as they are evincing that they no longer intend to be bound by their contract.
Ultimately, the legal test for whether an employee has abandoned their employment is if the employee’s conduct would convey to a reasonable person, in the employer’s position, that they are renouncing all or part of the employment contract.
An employee may be made redundant from their employment, essentially meaning that they are no longer required in their employment.
A redundancy is considered genuine, and therefore ineligible as an unfair dismissal claim, if three requirements are met.
If one of these three requirements are not met, the employee may be able to pursue an unfair dismissal claim through the Fair Work Commission, alleging that their redundancy was not genuine and should thus amount to an unfair dismissal.
However, if an employee commences an unfair dismissal claim and the employer believes that the redundancy was genuine, the employer is entitled to make a jurisdictional objection to the employee’s claim. If it is subsequently found by the Fair Work Commission that the redundancy was genuine, the Commission will not be empowered to hear to the unfair dismissal claim. Conversely, if it is found that the redundancy was not genuine as per the above requirements, the employee’s unfair dismissal claim may be conciliated (or eventually determined) by the Fair Work Commission.
A dismissed employee has 21 days after their dismissal becomes effective (ie. the day following their last day of employment) to lodge an unfair dismissal claim with the Fair Work Commission. For assistance with this process and to seek representation, please call our specialised team at any time on 1800 333 666.
In any circumstance, the dismissal – in the form of a dismissal or a resignation – must be clearly communicated. There must be a separation of the employee from their employment.
The employee should also be given a reason for which they are being dismissed.
If you feel as though your confidence has taken a hit, or defeated as though it will be just as bad everywhere and exhausted from battling the bullies. Know that you are not alone, it is not your fault and you can recover from this. We are here to help you restore your sense of self, overcome this toxicity and move forward.
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