A dilemma faced by employers on an almost daily basis is "can I terminate my employee for doing something unsafe?".  Whether it be driving unsafely, not wearing personal protective equipment or attending for work under the influence, consideration needs to be given to whether the actual breach constitutes serious misconduct or not.  Many cases in front of the Fair Work Commission result in dismissals being decided as unfair, unwarranted or excessively harsh.

Unsuccessful outcomes of unfair dismissal claims can be damaging to morale and reputation, employers need to ensure that the action resulting in the decision of termination amounts to serious misconduct.

To protect against a claim for unfair dismissal, consider if the employee’s act or omission put anyone or anything at substantial and imminent risk of injury or harm.  If it can be shown that nothing or nobody was at risk, then the dismissal may be considered too harsh.  Another consideration should be whether the breach was deliberate or reckless, and if the employee has been trained or has prior awareness to the rules against what they have done.

An employer should also have clear policies and procedures that detail the actual rules and in particular, the consequences for breaking those rules.  Policies should be trained and retrained periodically and reinforced where relevant.  This will go a long way to amounting a defensible claim.

Even with all of the above, an employer may be at risk if it can be evidenced that previous breaches have resulted in less serious outcomes.  If you have detailed consequences for breaches, you must be consistent in implementing those consequences or evidence why you have been selective that would be deemed reasonable in the instance of the more serious outcome.

Prior to determining termination as the course of action – even for serious misconduct, an employee must be advised of the alleged breach and provided an opportunity to respond in the presence of a support person should they wish to have one.  Employers may also consider undertaking an investigation prior to the final outcome decision being made.

Ensure consideration is given to employment history – whether a long term unblemished record can have a negative effect on the decision to terminate.

Would other disciplinary measures be more reasonable to termination, such as warnings, or other disciplinary measures. Another aspect of a defensible claim would include demonstrating that other considerations were made prior to the final decision of termination.

For assistance in ensuring you follow a fair and due process please contact us at [email protected]

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.