Allowing employees to defend themselves before dismissal

 
Having to dismiss an employee is one of the more complicated aspects of running a practice. This process, if not done properly, can lead to serious fines, and claims made against an employer. This can be in the form of an Unfair Dismissal or General Protections Claim. The Workplace Relations Team have experienced an influx in queries and questions from our members like ‘how can I dismiss an employee for misconduct?’, ‘what is the process for dismissing a staff member?’, or ‘I feel like my staff member breached the conditions of their contract, so I fired them on the spot. Can they make a claim against me for doing this?’

Even though the dismissal process can become quite lengthy and may seem to favour the employee at times, every step in the process must be followed. You must always allow the employee a chance to respond and explain themselves on the allegations made against them. There are a plethora of employment cases where an employee has been in the court's favour over a dismissal as they were not given the opportunity to respond, resulting in their employer having to pay fines for their dismissal. 

As an example, an employee was suspended from working after allegations of threatening and inappropriate behaviour towards their colleagues and engaging in serious misconduct with their patients. Although these provide solid grounds to be terminated, during the dismissal process, the employee was not given the opportunity to respond. By missing this step, the employee can file an Unfair Dismissal claim against their employer for their dismissal being harsh.    

The Fair Work Commission deem a dismissal to be unfair if it is considered harsh, unjust or unreasonable. Only one of these three factors must be met for an unfair dismissal claim to be processed. 

In section 387 of the Fair Work Act, an employee must be notified of the reason for their termination and must also be given an opportunity to respond before the decision to terminate is made. This is to ensure the employee has been treated fairly and that the employer has not breached their obligations.

When you are enabling a staff member to defend themselves and provide reasoning for their actions, you need to ensure you are remaining open to what they are saying. If you are giving them the opportunity, but the decision to terminate has already been made, irrespective of anything the employee says in their defence, then this would not constitute their opportunity to defend. This opportunity to respond does not necessarily need to be in a formal discussion/meeting and should be applied logically and in a rational manner, to cover the employer in the process.

You can read more about unfair dismissals in the Fair Work Commissions Bench Book, or contact the Workplace Relations Team for further guidance on (07) 3872 2222 or email, workplacerelations@amaq.com.au.  

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