Employers who want to dismiss an employee need to ensure that the employee is given an opportunity to respond to every single fact, circumstance or reason which the employer proposes to rely upon to dismiss the employee.
A Cautionary Tale
In Remmert v Broken Hill Operations Pty Ltd [2016] FWC 6036, the Fair Work Commission held that Mr Remmert was unfairly dismissed by Broken Hill Operations. Broken Hill Operations had a valid reason to terminate Mr Remmert’s employment. It had provided Mr Remmert an opportunity to respond to a report about his conduct. However, the report did not include all of the things that Broken Hill Operations actually ended up taking into account when dismissing him. This meant that the dismissal was unfair, even though Broken Hill had a proper reason to dismiss him. Mr Remmert got compensation totalling $28,471.
Six Steps to Dismiss an Employee for Misconduct
There are six steps to terminate an employee for misconduct:
- Engage an external person to conduct a workplace investigation into the misconduct.
- Ask an employment lawyer to provide advice on whether the facts revealed by the investigation justify the dismissal of the employee.
- Write a letter called a ‘notice to show cause’ to the employee outlining all of the facts which the lawyer has told you justify dismissal.
- Ask the employee to respond to the facts raised in the ‘notice to show cause’ and to raise any other factors that he or she wishes you to take into account.
- Consider the employee’s responses to the notice to show cause and decide whether you still think his or her dismissal is justified.
- Write a letter to the employee informing him or her of your decision.
Follow these steps, and the dismissal will run as smoothly and fairly as could be expected. Contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au.
The information contained in this post is current at the date of editing – 19 January 2024.
