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Unfair DismissalAugust 5, 2016
Put yourself in the shoes of this employer: you have an employee who is absent from work on four weeks annual leave. The employee has received a number of warnings during their two years of employment with the company and is on a final written warning. You discover the employee has violated the same issue. You want to dismiss the employee by sending notice by registered mail to the employee’s home address, letting them know that they are being terminated.
Well, the answer is: it depends.
Generally, the employer would need to wait until the employee returns from annual leave before giving notice of termination of employment. The question would be raised around why the employer could not postpone the process until the employee returned to work.
If there is a circumstance where an employee is on leave and, during that leave, has been found to have engaged in ongoing misconduct that could continue to occur while they are away, for example, stealing from the company via their work IT system – the employer could have grounds to start the dismissal process before they return.
The company needs to have reasonable grounds to terminate their employment, and this needs to be done using a fair process. Part of that process means that the employee needs an opportunity to respond to any allegations made against them – there may be a need for further investigation or explanation.
Simply terminating without a meeting makes it likely that the employer is going to miss those procedural steps the Fair Work Commission will assess for, and the employer may find themselves on the wrong end of an unfair dismissal claim.
Employsure advises where postponing the dismissal is not detrimental to the business – the employer should wait for the employee to return to work. For example, if the employee is using their company email address to sexually harass other employees, you would have grounds to contact them straight away. However, if the misconduct was an isolated incident that happened some time ago, it is best to raise it when the employee comes back to work – it all depends on the severity of the misconduct and the impact it had on other employees and the business. As far as is possible, the employer should seek not to interrupt the employee’s leave – particularly if it is sick leave.
The bottom line is that dismissals should always be implemented in a manner that is as respectful and fair as possible. Thoughtfully consider all factors, including severity of the problem and past misconduct history — and then make the decision that is best in your specific situation.
If you require advice regarding employee misconduct or dismissals, please contact Employsure on 1300 651 415 to speak to a specialist.