Terminating employment – Why it pays to get it right.

Posted by Luke Mitchell on 26 February 2015

In a recent decision handed down by the Fair Work Commission, an employee who circulated a “highly offensive"  email that the Commission found to have vilified people of the Muslim faith, sought to incite readers to take political action against them, and had significant potential to damage the employer's reputation, was nonetheless found to have been unfairly dismissed.

Notwithstanding, the Commission’s findings in respect of the content of the email itself, as well as finding that the applicant had adopted “a belligerent and intransigent attitude about the email and its impact", the employer’s failure to follow a proper process in terminating the applicant’s employment resulted in him being awarded $28,578 in compensation. This was despite the Commission’s finding that the act of sending the email provided a valid basis upon which to terminate the applicant’s employment.

Critical to the Commission’s reasoning was the applicant’s age (he was 65 years old), his financial position and the difficulties he would face in obtaining alternate employment,  his lack understanding of appropriate conduct in "a modern and multicultural workplace” and the lack of formality surrounding a previous warning that he had received in respect of similar conduct.

Had the employer followed a proper process from the outset, including making it clear to the applicant that his conduct was inappropriate and that his employment would be jeopardised should he engage in similar conduct in the future,  it could have avoided the costly and time consuming proceedings.

The Commission’s decision serves as a stark reminder to employers of the importance of properly managing the disciplinary process.

We strongly recommend getting advice at the start of the disciplinary (and/or performance) process rather than following termination - when the damage has often already been done.

For assistance with your Employment Law requirements, call the experienced employment law team at Dooley & Associates Solicitors.