QHA-Review_Feb_Digital

Sarah Swan EMPLOYMENT RELATIONS
Notification of reason
The reason for termination should be notified to the
employee before termination occurs. Commentary
on this criteria suggest that practically speaking,
employees should be notified before the decision
is implemented to terminate employment, since an
employer cannot inform an employee of a reason for
termination prior to deciding to terminate.
Opportunity to respond
Even in cases of serious misconduct, an employee
must be given an opportunity to respond to the
employer’s reason for the proposed dismissal.
Consideration of the employee’s response by the
employer must be had prior to the decision to
dismiss and certainly before the termination itself.
Importantly, the employee does not need to take up
the opportunity to respond, as long as the employer
can demonstrate that the opportunity was afforded to
the employee.
Presence of support person
If an employee requests to have a support person
present to assist at any discussion relating to the
dismissal, the employer must not unreasonably refuse
this request.
Any other relevant matters
In cases of serious misconduct, it has been argued
that the dismissal was not appropriate because
the penalty was a disproportionate response to
the employee’s conduct. As such, employers
should consider whether other disciplinary action is
appropriate, for example; dismissal with notice or a
final warning.
For an example of a procedurally fair process involving
allegations of serious misconduct, an employer has
CCTV footage of an employee stealing money from
a register and drinking whilst on shift. These types
of behaviours would fall into the definition of serious
misconduct, and having CCTV footage as evidence
means that this would be a well-reasoned decision,
based on the evidence, to terminate employment. The
employee is invited to a meeting at 9am and given the
option to have a support person present, for these
allegations to be put to them for their response. The
employee provides a response to the allegations. The
employer calls that meeting to an end, whilst they go
away and consider the response provided, as well as
the other evidence gathered (the CCTV footage). After
considering all the available material, the employer is
able to make a finding, on the balance of probabilities,
that their allegations of serious misconduct is able to
be substantiated. As such, they decide to terminate
the employee’s employment. A meeting is reconvened
with the employee later that same day and the
employer advises the employee of the decision to
terminate their employment, on the basis of serious
misconduct.
Lessons for Employers
Caution should be exercised by employers when
contemplating dismissal of an employee for serious
misconduct. Evidence that substantiates the allegation
of serious misconduct and documentation of the
process undertaken by the employer is vital when
defending a claim of unfair dismissal.
In addition, employers must be mindful that failure
to take any action against allegations of serious
misconduct may constitute as the employer condoning
such behaviour. In turn, this creates hurdles in the
future should the employer seek to terminate the
employee for engaging in similar behaviour.
If you are required to make a decision about whether
or not to terminate an employee’s employment for
serous misconduct, contact the QHA’s Employment
Relations Department for advice.
1
Mollinger v National Jet Systems Pty Ltd [1999] AIRC
285 Print R3130.
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