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Employsure explains the second most common employer complaint.

TerminationAugust 3, 2016

Employsure explains the second most common employer complaint. (Last Updated On: August 9, 2016)

Employsure’s Advisers often hear from employers who have similar complaints or concerns regarding workplace relations. In order to assist employers with confusing workplace regulations, we will address these concerns in an ongoing basis over the coming weeks and months.

Click here to read last month’s article featuring the most common complaint, which related to the yearly wage increase.

Today’s article will focus on another common question we get – why am I not able to terminate my employee on the spot?

In simple terms, you cannot terminate an employee on the spot because you must be able to prove the employee is guilty of serious misconduct.

For a dismissal to be considered fair and just by the Fair Work Commission (FWC), a detailed and unbiased investigation must be conducted. After conducting an investigation, if the employer believes their employee is guilty of serious misconduct, including but not limited to theft, fraud, violence or serious breach of work health and safety, then they are able to terminate without providing them with notice or warning.

Outlined below are our top four tips to assist with a workplace investigation.

1. Act immediately.

As soon as you have reason to believe an employee has engaged in serious misconduct, you must act immediately. This involves conducting interviews with fellow staff members who may have been involved in, or witness to, the misconduct and record all responses.

2. Inform all parties involved of the investigation.

The employee who is responsible for the misconduct, along with any witnesses and complainants should be informed that an investigation is taking place and that they will be kept informed and up to date of the process. If any delays occur in the investigation, all parties involved should be made aware of when the investigation will recommence.

3. Consider suspending the employee.

Employers can consider suspending the employee whilst an investigation is being conducted. Suspension may be required if an employer believes there is a reasonable threat to colleagues or clients, property or the business. However, there is no automatic right for an employer to suspend an employee – it must be specified in the company’s contracts, Modern Award or collective agreement.

Employers are not entitled to withhold wages or salaries from an employee, especially if the wages and salaries are for work already completed.

4. The person conducting the investigation must be impartial.

When conducting any workplace investigation, employers must ensure evidence substantiating an employee’s involvement in serious misconduct is obtained objectively.

The investigator does not necessarily need to be an external person, however, they must have the appropriate skills and experience. An external investigator would be a viable option if the employee who is believed to have engaged in misconduct is a senior manager, or if your business lacks the resources to conduct an investigation internally.

It is important to note that the investigator should not be responsible for deciding what the consequences for the employee will be following the investigation. They should only be engaged to gather all facts of the alleged misconduct and present them to the employer.

As Australia’s leading workplace relations specialist, we can make sure you are aware of your obligations as an employer. If you have any questions regarding employee misconduct and conducting an investigation call Employsure today on 1300 651 415.

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