Summary dismissal for serious misconduct
An employer has the right to dismiss an employee summarily (that is, without notice), in circumstances where an employee engages in any act or omission that amounts to “serious misconduct”. Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth) defines serious misconduct to include:
a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
Conduct that is serious misconduct is then further defined to include:
a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
b) the employee being intoxicated at work;
c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
The ‘window” between the employee’s act and the time of dismissal
Historically, little consideration has been given to the “window”, or the timeframe, in which the employer can dismiss an employee following an incident of serious misconduct. However, the recent decision in James Chol v Vivesco Pty Ltd [2024] FWCFB 335 saw the Fair Work Commission (FWC) provide clarity on the “window” as it applies to summary termination.
Background
Mr Chol was employed as a landscaper. On 19 December 2023 Mr Chol behaved in a threatening and abusive manner towards his co-worker, Mr Tom Case. The Employer purported that this incident amounted to serious misconduct and subsequently summarily dismissed Mr Chol approximately eight weeks later on the grounds that his actions amounted to a breach of the employer’s policy on workplace harassment and bullying.
Mr Chol lodged an unfair dismissal claim that the incident was not a valid reason for dismissal under section 387 of the Fair Work Act 2009 (Cth) (the Act).
The FWC Decision
The Deputy President of FWC noted that s 387(a) of the Act requires the FWC to consider whether there was a valid reason for dismissal, not whether the reason relied upon by the employer was a valid reason. The Deputy President concluded that the outburst on 19 December 2023 was a valid reason for dismissal, constituting serious misconduct. However, the incident pre-dated Mr Chol’s termination by approximately eight weeks, giving rise to the consideration of when a valid reason loses its window of currency. The Deputy President argued against a narrow interpretation of this window, suggesting that to restrict this window too narrowly would penalise employer leniency and promote hasty dismissals. He concluded that the window remained open in this case because the incident was part of a pattern of inappropriate conduct by Mr Chol.
The Deputy President also considered other incidents involving Mr Chol, including a sarcastic and belittling text message sent to another employee, and an offensive interaction with the same employee in February 2024. Although these incidents were not as severe as the 19 December 2023 incident, they contributed to the overall assessment of Mr Chol’s conduct and supported the validity of the summary dismissal.
Impact
This case highlights that while a valid reason for dismissal must exist, the timing of the dismissal should not be overly restrictive, as this could discourage employer leniency and lead to premature terminations. Employers should ensure that their actions are consistent and justified, taking into account any patterns of inappropriate behaviour, to support the validity of summary dismissals.
For more information, or to discuss your employment needs, please contact Jenkins Legal & Advisory on (02) 4929 2000 or email office@jenkinslegal.com.au.
This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
Comments