Misconduct or misnomer?


Misconduct or misnomer?
Often in smaller enterprises, minor issues of misconduct or underperformance are dealt with in a less formal capacity. This can result in consistent verbal warnings or reminders.

Serious misconduct is a loosely defined term, one of which has significant influence over the validity of terminations. There is a tendency for small operators to shy away from summary dismissals in favour of providing warnings.

This has developed as common practice for businesses seeking to avoid unfair dismissal claims. This apprehension is in part due to conjecture over what constitutes 'serious misconduct'.

For small businesses, particularly those without reasonable access to internal HR specialists, assessing incidents can be difficult.

In circumstances where summary or 'instant' dismissals may be not only appropriate, but in fact be operationally necessary, fear of unfair dismissal breaches can impede the decision making process.

As a by-product of this conjecture, not only are certain businesses forced to operate with lowered productivity (through lowered employee morale), but employees are being unreasonably and unnecessarily kept on in spite of serious actions.

Under the Small Business Fair Dismissal Code it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is suffciently serious to justify immediate dismissal. The Code defines "Serious misconduct" to include theft, fraud, violence and serious breaches of occupational health and safety procedures

The Fair Work Regulations also define misconduct as "conduct that causes serious and imminent risk to: the health and safety of a person; or the reputation, viability or profitability of the employers business."

Further to the above understanding of serious misconduct, the regulations speak specifically about incidents such as theft, fraud, assault, being intoxicated at work, and refusal to carry out lawful and reasonable instructions that are consistent with the employee's contract of employment. 

To highlight this through a hypothetical example, one may consider a situation where one employee assaults another employee. As assault is specifically mentioned in the regulatory definition, this action would constitute serious misconduct. Despite the relative ease of such an example, there exist cases where the determination of conduct can be less clear. It is for this reason that seeking advice on more ambiguous scenarios is important.

One such real life example is that of Wach v Teys Bros (Beenleigh) Pty Ltd T/A Teys Brothers [2012] FWA 15 (3 January 2012). In this case an employee entered into a physical altercation with another employee after an unprovoked attack on him. Both employees were subsequently dismissed without notice.

This unfair dismissal case was founded around the nature of the retaliation. Commissioner Roberts found that "When fighting in the workplace is added to the mixture, and the entire incident is caught on video, the Company took a valid course of action. The zero tolerance policy adopted by Teys is a reasonable one."

The Commissioner however, concluded that the choice to retaliate did not constitute serious misconduct, and that termination without notice was harsh.  

Summary dismissals do carry associated risks, and in many circumstances it is wise to take a more conservative approach to dismissals. However, employers ought not to fear using such an action.

In cases where serious misconduct has occurred in the workplace it is generally in the best interests of the business to expel the cause of the related issue. If barriers exist to achieving this outcome, then negative effects can result.

Having a damaged working culture or unresolved tension within a workplace has ancillary consequences that can directly affect productivity, and by extension the profitability of the business.

This article was written by the Workplace Relations Team at Restaurant & Catering Australia. You can contact them on 1300 722 878. Or head to the R&CA website.


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