AREEA principal employee relations consultant Bill FitzGerald examines the components of dismissal for serious and wilful misconduct, providing advice as to whether or not it is prudent to make a payment in lieu of notice, notwithstanding the seriousness of the behaviour.
WHERE an employee is dismissed for serious misconduct, they do not strictly have an entitlement to notice.
Serious misconduct is defined in the Fair Work Regulations (r 1.07) as having its ‘ordinary meaning’ and specifically includes:
- wilful or deliberate behaviour that is inconsistent with the continuation of employment;
- conduct that causes serious and imminent risk to the health and safety of persons or the reputation, viability or profitability of the business;
- theft;
- fraud;
- intoxication at work; and
- refusal to carry out lawful and reasonable instructions of the employer.
Some employers are inclined, particularly in the case of long-serving employees with an unblemished record, to make a payment in lieu of notice in any event.
Employers should, however, bear in mind that such payment could be prejudicial in defending an unfair dismissal application. This is because a tribunal may take the stance that on one hand, the behaviour was serious enough to be considered serious and wilful misconduct, while on the other hand, the employer is treating it less seriously because a payment is made in lieu of notice.
In these circumstances, it is advised that any payment in lieu of notice be tagged as “an ex gratia payment on a without-prejudice basis in recognition of long service”.
In addition to procedural fairness requirements of summary dismissal, employers must also establish a valid reason for the dismissal and show that the employee did commit the serious misconduct.
The allegations should be explained to the employee and an opportunity provided for a representative to attend to and to provide any responses. Such responses should then be properly considered before an appropriate action is determined.
AREEA provides on-the-spot advice in respect to disciplinary matters generally, and our experienced consultants can be reached in any of our AREEA state offices to provide such advice before taking action. Seeking advice is a strong insurance measure that could prevent unnecessary costs by avoiding unfair dismissal applications.
AREEA Training and Development also specialise in coaching managers and supervisors on these particular matters. For more information, contact the AREEA Training and Development team on 1800 891 662.
