Recent decisions of the Fair Work Commission (FWC) have illustrated how important it is for employers to follow sound practices when taking disciplinary action. Further, if employers have a policy in place, be that in an Award, an Enterprise Agreement or an employer policy, they should follow it.
Recently, a hospital security guard who was summarily dismissed after using “disproportionate and excessive force” to prevent a patient from leaving the emergency department was awarded more than $30,000 after the FWC decided he had been unfairly dismissed.[1] Despite conceding that the hospital had a valid reason for the dismissal, the FWC acknowledged that the hospital had failed to follow the investigation and disciplinary procedures outlined in the governing enterprise agreement, and that the dismissal could therefore not be considered fair.
Similarly, the FWC ordered a company who summarily dismissed casual excavator operators for treating two trainee labourers “poorly” to pay the former employees over $3,000 as it was found they had been dismissed unfairly.[2] The employer didn’t appear to have, nor follow any “reasonable” disciplinary procedures prior to ending their employment on the basis of “misconduct.”
These decisions clearly demonstrate the importance of following any process in place and not merely winging it. The latter is easiest avoided by having a clear disciplinary policy and well understood procedures in place to manage misbehaviour and misconduct in the workplace.
If you’re unsure whether your disciplinary policy and procedures meet the legislative requirements, please contact mazarshr@mazars.com.au or 3218 3919.
[1] Mr Michael Scott v Latrobe Regional Hospital [2019] FWC 5680 (6 September 2019)
[2] Mrs Carmen-May Olver: Mrs Linda Waldron v Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations [2019] FWC 4901 (3 September 2019)
