'The decision to impose disciplinary action on an employee or terminate an employee is often fraught with difficultly and requires significant factual and legal analysis'
Managing poor personal behaviour in the workplace is not easy for any employer.
There is an array of factors an employer needs to take into consideration when deciding what level of action, if any, to take if an employee is acting out of character and their behaviour is affecting others.
Whether the employee is going through a personal crisis or is behaving in an unusual way due to something that happened at work, there are various factors that an employer will weigh in their decision-making process.
“Managing a workplace is difficult at the best of times but can be particularly difficult in circumstances where an employee engages in poor behaviour,” Greg Robertson, executive counsel, Harmers Workplace Lawyers, said. “Poor behaviour can have a detrimental impact on the workplace generally, including the morale of other staff members and ultimately, the profitability of an employer’s business.”
The Fair Work Act 2009 (Cth) recognises that poor behaviour is harmful in the workplace, he said, and an employer has the right to manage poor behaviour by imposing disciplinary action on an employee and in extreme situations, by terminating an employee’s employment.
“The objective of the proposed disciplinary action should be to mitigate against the risk of poor behaviour or remove the risk from the workplace.”
Poor behaviour can vary in its significance, Robertson said, so it is important for an employer “to come to a realistic and informed view of the seriousness of the poor behaviour, before deciding on an appropriate path to take.”
The difference between poor behaviour and serious misconduct
There are significant variations between someone behaving inappropriately and serious misconduct which covers the areas of theft, fraud, assault, sexual harassment, intoxication at work and failure to carry out a reasonable and lawful instruction of the employer, as covered in the Fair Work Act.
“If an employee engages in serious misconduct, there may be grounds to consider the summary dismissal of that employee, that is, termination without notice,” Robertson said.
“However, at the other end of the scale, there may also be instances where an employee engages in poor conduct that is not sufficiently serious to warrant summary dismissal, and cannot be classified as serious misconduct. In those instances, an employee may consider a lesser form of disciplinary action such as a first and final warning or a direction that an employee undergoes further training to understand the organisation’s expectations and reduce the likelihood of the employee engaging in the same type of poor behaviour in the future.”
In between those two levels of seriousness, some poor behaviour, while not serious misconduct, is such that an employer may consider that the employment relationship cannot be repaired, he said, and will want to terminate the employment by the giving of notice under the contract of employment.
“The decision to impose disciplinary action on an employee or terminate an employee is often fraught with difficultly and requires significant factual and legal analysis. Accordingly, prior to terminating or imposing disciplinary action on an employee, an employer should seek legal advice,” Robertson said.
Mental, physical health considerations
In Robert Campbell John Hunter v Wentworth Financial Services Pty Ltd (Mills+Brown) [2023], the Fair Work Commission found that the summary dismissal of a financial advisor was justified.
Hunter was a financial advisor who presented to work “intoxicated, lacked coordination, had bloodshot glossy looking eyes, slow pupil response … slurring of speech”. Wentworth Financial Services directed Hunter to undertake a drug and alcohol test, but he refused.
Hunter was terminated on the same day on the ground of serious misconduct. Wentworth Financial Services considered that Hunter’s conduct constituted a health and safety risk and was a breach of his employment contract.
“If an employee is struggling to perform their role because of a mental or physical issue, then it is important that the employee is not at the workplace and takes personal leave to recover,” Mariam Chalak, solicitor, Harmers Workplace Lawyers, said.
“The employee should only return to the workplace once they recover and have capacity to perform their role.”
An employer also has a primary duty of care under the work health and safety legislation in each state to ensure the health and safety of workers engaged by the business, she said.
“To that end, if an employer is put on notice that an employee is mentally or physically unwell, then it is important that action is taken to ensure compliance with the statutory duty of care under the relevant work health and safety legislation.
“Employers should also be aware that an employee who is unwell may have rights under state and federal disability legislation, as well as under the Fair Work Act, and under state workers’ compensation legislation.”
Reasonable dismissal
If an employee engages in serious misconduct or misconduct, an employer may consider terminating the employee’s employment. However, as part of the dismissal process, the employer must ensure that the dismissal is not carried out in a way that renders the dismissal harsh, unjust or unreasonable, according to Harmers Workplace Lawyers.
An employer must ensure that the following factors are considered prior to terminating an employee’s employment:
- there must be a valid reason for the dismissal of the employee relating to their conduct
- the reason for dismissal must be communicated to the employee
- the employee must be provided with an opportunity to respond to the allegation of serious misconduct or misconduct
- if the employee requests a support person to attend a disciplinary meeting, that request should be considered and consented to by the employer if it is reasonable
- the Fair Work Commission will consider the size of the employer’s business, including whether the business has a dedicated Human Resources function. In those circumstances, there may be a greater onus on the employer to ensure that procedures relating to dismissal are complied with.
Many employers fall into the trap of immediately terminating an employee without complying with the framework above. In those circumstances, the terminated employee may file an unfair dismissal claim under the Fair Work Act against the employer in the Fair Work Commission, according to Harmers.
If a claim is filed, the Fair Work Commission will be required to determine whether the dismissal was harsh, unjust or unreasonable with reference to all or some of the factors identified above.
