Does Misconduct Always Justify Dismissal?
We often take calls regarding employee conduct. Sometimes the client is irate and on the face of such a call the only logical end is that the perpetrator be dismissed, instantly, for serious misconduct. Minds are made up, and decisions are made and conveyed, very soon after the call has been received.
But what about process? And the right to know specifically what is being alleged, when it occurred and whether there are documents or statements the employer is relying on to reach a decision about the employee’s working future with the company? What about the right to respond and have that response genuinely considered when the employer is arriving at making a decision about the employee’s future?
The first thought – the conduct is serious and justifies dismissal – is often hard to get past. It may lead to taking the commercial risk that the employee would probably not take it further because of their actions contributing to the situation (leading to a reduction in any remedies if the employer did get it wrong on dismissal). A recent case Williams v Independent Stevedoring Limited (ISL) highlights the importance of following a fair and full process when dealing with conduct that, on its face, is clearly serious and may justify dismissal.
In the ISL case, a verbal and physical altercation between two employees at lunch ended up in one employee throwing her hot coffee over her co-worker as her parting shot when the fight spilled over to personal attacks about family members. Ms Williams’ Union representative advised her that she should resign given the seriousness of her actions and the high likelihood she would be dismissed. ISL took statements from Ms Williams and the other party to the incident about their versions of what had occurred. A good start. Each had a different account of what actually occurred. However, it failed to interview other witnesses which would have helped resolve the conflict in the statements of the parties involved in the incident. It also failed to properly specify what the allegation was. In addition, and in an attempt to conclude the process and outcome quickly, the Authority held ISL failed to properly consider what Ms Williams had to say about the incident and took Ms Williams’ statements about the advice she had received from her union as a statement Ms Williams was resigning, albeit she said she attended the meeting without any support or representation not thinking it was in any way disciplinary or would end in the employment relationship terminating. ISL had also failed to notify Ms Williams of the disciplinary nature of that particular meeting and that she was entitled to have support and/or representation at that meeting. Even with a 50% reduction in the remedies, Ms Williams was awarded. She received over $15,000 in lost wages and compensation for hurt and humiliation. She would also be entitled to recover some of her legal costs (likely at the daily tariff rate of $4,500).
Had ISL conducted a fuller investigation, and perhaps taken a week or two to work through disputed facts and provide Ms Williams with all relevant information and an opportunity to respond properly, it is likely it could have justified a decision to dismiss her for serious misconduct. It also overlooked some of the basic and fundamental procedural requirements in addressing what was a serious employment issue in a formal disciplinary setting.
What are the learnings for an employer in ISL’s shoes:
- Check the employment agreement and any relevant employment policies that specify what the employer will do when investigating and disciplining employees for misconduct. Where there is a contractual or policy that provides for a process, this must be followed.
- Investigate the conduct beyond the accounts of the parties involved, particularly where there are clear and obvious disputes between the accounts of events of the parties involved.
- Provide all relevant information collected as part of any investigation. Where there are new matters arising, either from an employee’s response or in a statement from a witness, do not ignore. Instead determine whether it is relevant and whether further enquiry is necessary.
- Set out the specifics in writing, ahead of any formal meeting. Do not unnecessarily restrict the conduct/allegation to a specific contractual breach or a specific breach of a work rule. It may specifically breach a work rule but it is likely to have an impact on trust and confidence also.
- Make sure the written communication is clear about the nature of the meeting the employee is being invited to (i.e. is it an investigation or disciplinary meeting?), the possible outcomes from the meeting (i.e. a warning may be issued or dismissal may occur subject to the employee’s responses) and that he/she is entitled to have support or representation at the meeting.
- Genuinely consider the employee’s responses (if any) and when making a decision be able to explain why you have or have not accepted or rejected any part of the employee’s response. Where dismissal is the possible outcome, consider issuing a preliminary decision and providing the employee an opportunity (24-48 hours) to comment on the disciplinary sanction (e.g. instant dismissal) you are proposing.
- Record the decision in writing. The decision should include some form of reasoning about how the employer reached the decision it did and why it did or did not accept some or all of the employee’s responses to the allegations he/she had to respond to in a disciplinary setting.
Before a decision to take action is made, no matter how clear-cut a set of circumstances or employee conduct might seem, the process and the way in which an employer proceeds will be a critical and material factor in determining whether the employer’s action can be justified.
The above case highlights the importance of employers seeking legal advice when considering disciplining an employee or terminating an employee’s employment.
The initial cost of legal advice can often save an employer from the cost and inconvenience of a drawn out personal grievance proceedings.
For personalised advice on the employment dismissal process please contact Employment Specialist, Adam Gallagher.