Terminations: If you think it’s harsh – it’s usually harsh (but check first)!

 

Under Industrial Relations legislations here in Australia terminations can be seen to unfair or harsh, unjust or unreasonable.

Decisions by relevant courts and tribunals have determined; It’s Harsh if the consequences to the individual and economic situation of the employee disproportionate to the alleged offence. Unjust if the employee is not guilty of what the employer has alleged and Unreasonable if it was drawn on inferences that would not reasonable to draw from the material of the employers. It may be that a case is harsh but not unjust or unreasonable and so on.

The legislation will use a number of factors to determine if as the law defines harsh, unjust or unreasonable and this is around the process being followed or not really. For example; is there are valid reason, was the person notified of the reason, were they allowed the opportunity to have a support person and a few other reasons. Here are some real examples;

• The dismissal of a long-term Qantas employee for medical reasons caused by work-related injuries was found to be harsh. Whilst there was a valid reason there was procedural unfairness with a lack of an opportunity to respond, confusion with written correspondence with unrealistic timeframes. [David Lawless v Qantas Airways Limited 2015 FWC 6456]
• The instant dismissal of a Theiss employee for sending a work email that was highly offensive to the persons of the Muslim faith was found to be harsh and unreasonable he was 65 years of age and would have difficulty obtaining other employment, they relied too heavily on a previous verbal warning for engaging in the same conduct and they did not give him sufficient time to accept the emails were inappropriate and apologise during the show cause process. [Anderson v Thiess Pty Ltd [2014] FWC 6568]
• Mr Camilleri was dismissed following an internal audit that revealed he had made 141 improper expense claims for nights he wasn’t actually working away was found to be unjust because there was an excessive delay between his conduct and the dismissal and his 17 years of service and offer to pay back the reimbursements. [Camilleri v IBM Australia Limited [2014] FWC 5894]
• Mr Dent was dismissed for breaching the company’s driving safety policy when he was speeding in a company vehicle and using his mobile phone while driving. Whilst there was found to be a valid reason for his dismissal it was found to be unfair because he was not given sufficient notice of the disciplinary meeting and therefore denied an opportunity to respond to the allegations. [Dent v Haliburton Australia Pty Ltd [2014] FWC 5692]
• The termination of Mr Quinlivan was found to be fair and just however harsh even though he breached safety rules and the reason was because of disastrous effect on the employees life – that being the prospect of long-term unemployment cause financial hardship, risk of losing his house, stress on marriage, exacerbation of his wife’s depression and impact on his young daughters. [Paul L Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWC 883]

Whilst I believe that you should get advice as these issues can be complex particularly when there are other factors involved and / or depending on the action taken in the lead up, I do think generally think however if you think it’s harsh then it probably is. However, I think to do this you need to sometimes put the shoe on the other foot as we are all too focused on our own agenda’s most of the time.

Would you think it was harsh if you were terminated without been given a chance? Would you think it was harsh if you weren’t provided a valid reason for your termination? Would you think it was harsh if you weren’t given an opportunity to respond to the reason or a chance to improve? Would you think it was if this was you in these situations? I think you would! So, GENERALLY if you think it’s harsh, it usually is! If you are not sure, seek advice as when there are Discrimination, Workplace Health & Safety, Workers Compensation, Injury Management and other factors involved, not forgetting test cases, precedents which is consistently changing, it is more complex but as a first thought I believe you can use this as a guide. This view might be a bit loose due to the at times complexities however again, I think you can safely use it as a guide and would also recommend you get advice prior as its always far more economical than getting assistance afterwards and let’s not forget there are many more benefits to compliance than just mitigating risks.

The other thing to consider is that you need to treat all employees even those you are terminating in line with organisational values as fellow employees will be watching as how you treat their colleagues as that’s how they see themselves being treated if the shoe was on their foot.

At HR Business Direction we can assist with complex industrial relations issues.

Leisa Messer
Managing Director
HR Business Direction
leisa.messer@hrbd.com.au
07 3890 2066
www.hrbd.com.au