Firing employee was a mis-steak
November 10, 2015
It’s a gloomy day in NSW. You’ve just found out that your apprentice butcher has been charged as an accessory to murder. You look over to see him sharpening his knife. Would you terminate him?
The Fair Work Commission has recently answered this by ordering a butcher to pay out six week’s wages for unfairly dismissing an employee charged with an accessory to murder.
At the Commission, the Company argued that it sacked the employee as it was concerned that customers would boycott the butcher store, and that other employees would resign out of fear.
The Commission heard evidence from one retail employee that the apprentice received a phone call at work. “A short time later I noticed him sharpening his knife very aggressively and I said to him ‘what’s up?’ and he replied by saying if any of them touch me mates I will stab them”. The employee testified that “from that day on I had fears for my own safety”.
Although the Company’s concerns were valid, the Commission found that the way they handled the dismissal was inconsistent with the Small Business Dismissal Code. Firstly, they needed to consider whether the apprentice’s misconduct was serious enough to justify immediate dismissal, and secondly, whether such a belief had a reasonable basis, following an investigation.
Instead, the commission found that the Company had a “knee-jerk reaction” to the disturbing news and failed to establish “a relevant connection between the criminal activity and the employee’s employment”.
“There is no presumption that a criminal conviction alone is a valid reason for termination of employment, particularly where the criminal offence was committed outside of work”, the Commission found.
What can you learn from this?
This decision acts as a significant reminder of the risks involved in terminating an employee, regardless of the risk you think they pose to your business. This decision reinforces that you must follow best practice at all times by conducting reasonable investigations and allowing your employees to respond to any concerns or allegations, which they might request a support person to attend.
For more information on employee termination or the risks of unfair dismissal claims, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.