Should they be asked to explain themselves before a dismissal occurs?
If the employee claimed that the reaction to the death of a pet contributed to that outburst, would that make the dismissal "unfair"?
These matters were considered for the Fair Work Commission (the Commission) recently in the matter of Hanna.
The worker worked for the employer as a casual home care worker and performed a broad range of personalised domestic assistance and support tasks.
The employer engaged approximately 30 casual employees.
Soon after commencing employment, the worker made apparently justified underpayment complaints, although this did not amount to a matter which could be properly determined in the proceedings.
In December 2018, the employer sent two emails containing warnings about the worker's conduct, including matters such as the worker taking her daughter to work, leaving early from work, and not maintaining client privacy. In January and February 2019, the worker was included in further email warnings that were sent to all of the employer's care workers.
In February 2019 the worker unsuccessfully sought a reference from the employer in order to assist in seeking alternative employment. On 25 February, the worker visited the employer's office after completing a job, and again asked for a reference. At this time, the worker became highly agitated, screaming abuse and threatening various members of the employer's staff who were in the office at the time.
A short time after the worker left the employer's office, the employer sent an email to the worker dismissing her and saying, "No more jobs will be scheduled".
On the following morning, the worker visited the premises of a client with whom she had previously understood she had an engagement. The worker was then advised by the client that another care worker was to attend to her in the worker's place.
Ultimately, email correspondence followed between the employer and the worker, with a confirmation letter being sent to the worker addressed "To Whom It May Concern" stating that the worker had "stopped employment" for the purposes of the worker seemingly seeking social security payments.
In the employer's response to the worker's unfair dismissal application, the employer stated the following in relation to the reasons for the worker's dismissal:
"For being dishonest to the company. (The employer) has given notice to (the worker) many times for bringing her child to the workplace, leaving early from job(sic), talking over the phone during service hours. The clients complained to us many times and requested to change the care worker.
(The worker) used abusive words and threatened us by saying (")I will send my husband". We could not tolerate such kind of behaviour so dismissed her immediately".
The Commission found that the employer's finding of serious misconduct from the abusive and threatening incident on 25 February 2019 had been verified and was a valid reason for dismissal.
It was noted however that the employer did not provide the worker with an opportunity to respond or provide an explanation for her behaviour during this incident.
In this regard, the Commissioner went on to find:
"The (worker) committed an act of serious misconduct that warranted immediate dismissal. However, the employer's move to immediately invoke dismissal meant that the (worker) was denied an opportunity to respond or provide some explanation that may have militated against dismissal. Hypothetically, what if the behaviour of the (worker) was caused by some unforeseen reaction to prescription medicine? Or what if the (worker) was experiencing severe emotional distress as a reaction to the unexpected death of a beloved pet?".
The Commission found that the dismissal involved a clear procedural deficiency in denying the worker an opportunity to respond or provide an explanation for her behaviour, on balance, it found that the dismissal was not harsh, unjust or unreasonable.
While this decision amounted to a win for the employer, it demonstrates that even where serious misconduct is evident, a worker should be given an opportunity to respond or explain their behaviour before a termination occurs. As the Commission found, the fact that a worker might have been under some sort of emotional distress at the relevant time, including because of the unexpected death of a pet, could provide grounds for it to be successfully argued that a dismissal was unfair. These matters aside, a possible termination for serious misconduct should be considered very carefully, and legal advice should always be sought where possible.
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