Upholding a respectful workplace: what can employers do to ensure that dismissals based on misconduct are not deemed unfair?
There have been a number of recent cases relating to the termination of employees for misconduct relating to behaviours that could be considered improper, or not “politically correct”. Examples of such behaviour include:
- swearing and using abusive language;
- making inappropriate jokes about sexual assault;
- making racists comments.
In some circumstances the Fair Work Commissions deems that the dismissals are justified, but there are also cases where such dismissals are held to be harsh, unjust, or unreasonable.
There are a number of steps that employers can take to mitigate risk in respect of unfair dismissal applications, including:
Policies and procedures
It is vital that all employers have a collection of policies and procedures which regulate the way in which employees are expected to behave. These documents must be reviewed regularly, and employees must also be trained in relation to the expectations created by the policies and procedures. It is much easier for employers to enforce policies and procedures if they can provide evidence that employees were regularly trained and reminded about policies, rather than being provided with them on their first day of employment and never looking at them again.
Keeping appropriate documentation
Employers must document inappropriate behaviour by employees if they wish to suggest that there is a pattern of inappropriate behaviour. If a verbal meeting about behaviour is held, it should be followed up with an email to the employee confirming what was discussed, or at the very least a detailed file note of the conversation should be kept. The documentation should detail what warnings were provided to employees, what actions were taken to support the employees in rectifying their behaviour, and what opportunities were provided to employees to respond to allegations of misconduct.
Encouraging an appropriate culture
Employers must be seen to be encouraging and fostering an appropriate culture in the workplace, and pointing employees back to policies and procedures where required. This also involves having a systematic approach to identifying inappropriate behaviour. If an employer regularly ignores poor behaviour and then suddenly takes a stand against one instance of behaviour resulting in termination, this will lead to an assumption that the dismissal was harsh, unjust, or unreasonable.
If you follow these basic steps in running a business, it will be much easier to defend an unfair dismissal application in the event that one is made by an employee.