I often receive calls from Employers wanting to discipline or dismiss an Employee, however they are not sure how to go about it without possibly breaching some legislation and exposing their business to litigation or fines.

To underline the importance of sound disciplinary processes, in a recent case the Fair Work Commission castigated a HR manager for his part in the dismissal of an Employee after the Employer “hastily and erroneously” established his incapacity to work, finding it should have exhibited a “significantly higher standard of practice”.
The Commissioner noted that the company followed a “severely flawed” dismissal procedure despite the presence of HR practitioners. The Commissioner went on to note a string of “significant mistakes”. Amongst them were:

• The carelessness with which the termination of employment letter was constructed.
o The Employer provided written notification of dismissal in the form of the termination of employment letter erroneously dated ’10 Mary 2019′.
o The termination of employment letter also incorrectly referred to the Employee performing pre-injury in other places

• The Commissioner went on to state despite the result of the final medical assessment, the Company had not properly established the Employee’s incapacity to work.

• The evidence has established that the reason for the dismissal of the Employee, which was in part established upon a blatant falsehood, was not a sound, defensible or well-founded reason for the dismissal.

• The Employer also failed to provide the Employee with a proper opportunity to challenge his final medical assessment.

• The termination meeting, which was conducted by the HR Manager did not give the Employee an opportunity to respond to reason for the dismissal, which was his incapacity for work.

• Instead, the termination represented little more than a forum for the perfunctory implementation of the predetermined decision to dismiss the Employee utilising the creation of a fallacious representation of the Employee’s agreement as to his incapacity,” Commissioner Cambridge said.

• The commissioner concluded that “substantive and procedural deficiencies” rendered the dismissal unfair.

As can be seen, from the Commissions criticism in the above matter that when disciplining or dismissing an employee Procedural Fairness is paramount.

What Actions Can an Employer Take
1. Ensure that you have a Disciplinary Policy that complies with all relevant legislation and contemporary Human Resource Management practices.
2. All employees (especially supervisory and management staff) should be briefed on the content of the policy and procedure documents.
3. Require compliance with policy documents.
4. Prior to deciding, take the time to fully investigate the matter. Work at this stage may save quite an amount of money if litigation or an Unfair Dismissal Remedy is sought by the Employee.
5. Provide employees with the opportunity to respond in full to any allegations. Once you are aware of the Employee’s responses, you will either require more investigation or determine that you have sufficient information to “on the Balance of Probabilities” decide what action you will take, if any.