Employers need to take a step back and consider the evidence and the circumstances in which the event in question occurred before taking punitive action, says The Workplace employment lawyers Principal, Hannah Ellis.
“The totality of the circumstances need to be assessed when considering the gravity of misconduct,” Ellis told HC Online.
“Instead you should ask yourself, what actually occurred and how serious is this when examined in the context,” she says.
HR professionals should be asking questions like what were the effects of the conduct, was the conduct wilful and deliberate, does the employee have an unblemished record and does the employee have a long period of service, Ellis says.
These were points all taken into consideration in the recent Fair Work Commission
decision to reinstate a sacked Centrelink officer who called clients “spastics and junkies” on a social media forum.
The FWC ruled that his employer acted disproportionately in firing him over his comments and said that the employee caused no actual detriment to the department with his “situational” misconduct.
Ellis says it is important for HR professionals to be asking themselves if there were any defects in procedural fairness and if the investigation was poorly executed before making the move to dismiss an employee.
Employers should also consider what impact the termination will have on the employee, whether the employee showed remorse and what are the employee’s personal circumstances, taking into account any existing mental health issues.
The FWC recognises that the employment relationship "is capable of sustaining some stresses and strains", as was the case in Perkins v Grace Worldwide, where an employee was fired for allegedly supplying marijuana in the workplace when there was no evidence that this had occurred.
But termination should not be the only remedy for misconduct, Ellis says, reminding employers that there are other alternatives to consider before sacking a staff member.
“Termination is in a sense the ultimate disciplinary outcome,” she says.
“There are other disciplinary sanctions available to an employer prior to dismissing an employee. In these circumstances a first and final written warning would have been appropriate.”
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Shaming your employer on social media might be considered a sackable offence, but employers need to weigh up whether the punishment is proportionate to the employee’s misconduct, or risk unfair dismissal claims.