Last month, the High Court of Australia handed down what was perhaps the most critical decision in employment law for the last five years....
Unfair DismissalMay 5, 2016
A pharmacist who was dismissed by Foster Pharmacy, after he threw a phone and was rude to a colleague, has had his unfair dismissal claim dismissed.
We often see cases where employees have their unfair dismissal claims upheld, regardless of whether they engaged in misconduct.
So what did Foster Pharmacy do correctly?
In order to prove Foster Pharmacy had a valid reason for the dismissal of the pharmacist, they needed to show the Fair Work Commission (FWC) they had conducted an adequate investigation before taking action to terminate.
When an employer believes an employee has behaved in a way that violates workplace policies and procedures, a fair and reasonable investigation must be conducted. In this instance, the pharmacist had his employment terminated after Foster Pharmacy hired an external investigator to conduct a formal investigation into the pharmacist’s behaviour.
An employer must ensure they gather and assess all facts when dealing with employee misconduct. This includes any complaint documents, along with relevant policies and procedures and codes of conduct for the workplace. A colleague at Foster Pharmacy made a formal complaint against the pharmacist, stating he had sworn at her in front of a customer, and later, part owner of the business, Chi Chui, also made a formal complaint.
Fair Work Commissioner Deputy President Anne Gooley ruled in favour of Foster Pharmacy, stating she was satisfied they had made the decision to terminate the employee after considering the report from the external investigator. The FWC also took into account Foster Pharmacy’s belief that the presence of the pharmacist posed a risk to the health and safety of their employees.
This case shows the importance of following the correct procedure when faced with an employee who you believe is guilty of misconduct. Had Foster Pharmacy simply terminated the employee, it is highly likely the FWC would not have ruled in their favour as the dismissal would have been found to be harsh, unjust and unreasonable.
Hiring an external investigator is certainly not a requirement, however, you do need to ensure you conduct your own detailed investigation, documenting any evidence, while providing ample opportunity for the employee to respond.
Employsure can assist if you are considering taking action against an employee, or if you need assistance with conducting a workplace investigation. Contact us today on 1300 651 415 to speak to our team of specialists.
Sourced from AJP online