Avoiding the pitfalls of unfair dismissals. Michele O Neill and Vikki Sultana LGNSW Industrial Team

Transcription

1 Aviding the pitfalls f unfair dismissals Michele O Neill and Vikki Sultana LGNSW Industrial Team

2 Presentatin Plan 1. What is unfair dismissal? Industrial Relatins Act 1996 (NSW) (the Act) Case law 2. Best practice fr aviding unfair dismissal Pre-emplyment cmmunicatin Prbatinary perid Maintaining written recrds Issuing written warnings Aviding summary dismissal (where pssible) Cnstructive dismissal Prcedural and substantive fairness 3. Key pints and summary 4. Questins 2

3 What is unfair dismissal? Industrial Relatins Act 1996 (NSW) If Cuncil dismisses an emplyee and the emplyee believes that the dismissal is harsh, unreasnable r unjust, the emplyee may ldge a claim fr unfair dismissal: sectin 84 In determining whether a dismissal is harsh, unreasnable r unjust, the Cmmissin may cnsider the factrs listed in sectin 88 which include: whether a reasn fr the dismissal was given t the emplyee; if any such reasn was given - its nature; whether a warning f unsatisfactry perfrmance was given befre the dismissal; whether r nt the applicant requested reinstatement r re-emplyment; and any ther matters as Cmmissin cnsiders relevant. 3

4 What is unfair dismissal? Case law: Paris v Bankstwn City Cuncil [1999] When the dismissal is based upn alleged miscnduct a failure t satisfactrily establish any f the fllwing matters will prbably render the dismissal harsh, unjust r unreasnable within the meaning f the Act: cnducted a full and extensive investigatin; gave the emplyee sufficient time t answer all allegatins and respnd theret; and had reasnable grunds fr believing that the emplyee was guilty f the miscnduct alleged. Dunn v Waverley Cuncil [2013] The meaning f the wrds harsh, unreasnable r unjust has been decided in a lng line f cases and it is nt necessary t g beynd the rdinary meaning f the wrds as anybdy wuld understand them. 4

5 Tips fr aviding unfair dismissal If sme simple steps are fllwed then the ptential fr unfair dismissal can be minimised: 5

6 Pre-emplyment cmmunicatin Having clear and unambiguus plicies in place n a range f relevant wrkplace issues (including terminatin f emplyment) and making them knwn and available t all staff is an imprtant first step. Make sure yu refer t terminatin f emplyment prvisins and nte agreed perids f ntice: i.e. clause 38 - Terminatin f Emplyment f the Lcal Gvernment (State) Award 2014 (the Award). Als flag any behaviur that wuld cnstitute a serius breach f the emplyment cntract and indicate the cnsequences: i.e. the prcedures set ut in clause 36 - Disciplinary Prcedures f the Award. 6

7 Prbatinary perid It is usual t prvide fr a prbatinary perid. The pint f a prbatinary perid is t allw bth the emplyer and the emplyee a chance t assess each ther and the jb and decide if they wish t cntinue the relatinship. Mre imprtantly, hwever, under sectin 83(2)(b) f the Act, emplyees serving a perid f prbatin r qualifying perid are excluded frm making an unfair dismissal claim. Nte the very imprtant distinctin between sectin 83(2)(b) f the Act and sectin 382 f the Fair Wrk Act 2009 (Cth). 7

8 Maintain written recrds Cuncil shuld maintain files with infrmatin relevant t HR and management s relatinship with each emplyee. Managers shuld get int the practice f creating file ntes fr incidents that may impact n the emplyment relatinship. A paper trail f this kind may act as evidence that the crrect prcedures were fllwed shuld a dispute later arise ut f the terminatin f an emplyee s emplyment. 8

9 Issue written warnings Clause 36C f the Award Sets ut the requirements with respect t written warnings. Smith v Walgett Shire Cuncil [2010] In this case, allegatins f serius miscnduct against the emplyee were set ut in tw written warnings. The allegatins were based n annymus internal cmplaints rather than substantial evidence. The written warnings (which als frmed the basis fr dismissal) lacked bth prcedural and substantive fairness. The terminatin was fund t be harsh. Hw many warning letters? There is n strict rule but it is advisable that as a minimum Cuncil gives tw warning letters plus a final warning letter. Be certain t have made genuine attempts t imprve the emplyee's perfrmance in the areas utlined in the letters and try t avid relying n verbal/ral warnings. 9

10 Summary dismissal Clause 38(iii) f the Award Prvides that in cases f serius miscnduct, Cuncil may summarily dismiss an emplyee fllwing a prper investigatin and prvided the emplyee is affrded prcedural fairness. Clause 38(iv) f the Award Where an emplyee is summarily dismissed, the ntice requirements in clause 38(iv) f the Award d nt apply. Laws v Lndn Chrnicle (Indicatr Newspapers) Limited (1959) "I d, hwever, think... that ne act f disbedience r miscnduct can justify dismissal nly if it is f a nature which ges t shw (in effect) that the servant is repudiating the cntract, r ne f the essential cnditins; and fr that reasn, therefre, I think that ne finds in the passages which I have read that the disbedience must at least have the quality that it is `wilful'; it des (in ther wrds) cnnte a deliberate fluting f the essential cntractual cnditins." ***It is unlikely that an emplyee wh cmmits a grss breach f their emplyment cntract and is summarily dismissed wuld be able t substantiate a case fr unfair dismissal. Hwever, Cuncil must exercise extreme cautin prir t acting under clause 38(iii). 10

11 Cnstructive dismissal Cnstructive dismissal is an unlawful terminatin in circumstances where there is n express dismissal by the emplyer, hwever, the emplyer has nnetheless behaved in such a way that the emplyee is entitled t treat the situatin as a dismissal. Allisn, Anthny vs. Bega Valley Cuncil [1995] There are cases where althugh n the face f it an emplyee has resigned and brught abut the terminatin f the cntract f emplyment, in reality the cnduct f the emplyer has cmpelled r unduly influenced the emplyee t resign. Illustrative examples. Take hme message - NEVER ask an emplyee t resign! 11

12 Prcedural fairness Required under bth the Award and the Act! Prceedings must be fairly cnducted and must be seen t be s. The pprtunity t defend implies an pprtunity that might result in the emplyer deciding nt t terminate the emplyment if the defence was f substance. Cuncil puts frward the reasns fr dismissal and the emplyee has a chance t respnd. This shuld happen at each stage f the disciplinary prcess leading t dismissal (if that is where it leads). When advising the emplyee f an interview r disciplinary meeting, an emplyee shuld be given the pprtunity t invite a supprt persn where the pssibility f terminatin exists. An emplyer may simply g thrugh the mtins f giving the emplyee the pprtunity t deal with allegatins cncerning cnduct when, in substance, a firm decisin t terminate had already been made which wuld be adhered t irrespective f anything the emplyee might say in his r her defence. That wuld nt cnstitute an pprtunity t defend. 12

13 Substantive fairness If an emplyee makes an unfair dismissal claim, the Cmmissin will cnsider whether Cuncil had a valid reasn fr dismissal. This is substantive fairness. In particular, the reasn must be sund, defensible and well funded. Reasns fr dismissal cannt be capricius, fanciful, spiteful r prejudiced. 13

14 Case law examples: Prcedural and substantive fairness Paris vs. Bankstwn City Cuncil [1999] In this case, the dismissal was said t be harsh, unreasnable r unjust as the applicant was denied bth substantive and prcedural fairness fr the fllwing reasns: The actins f the applicant fell shrt f wilful miscnduct and this cnclusin was readily available t Cuncil at the time f the dismissal if the infrmatin gained frm the investigatin prcess had been viewed bjectively; While Cuncil culd be satisfied n the balance f prbabilities that wrkplace harassment had ccurred, its investigatin had been ttally ineffective in determining whether r t what extent the applicant was invlved; and Facts which came t light after the dismissal were relied upn by Cuncil t justify the dismissal. The applicant was reinstated. 14

15 Case law examples: Prcedural and substantive fairness Frd vs. Gsfrd City Cuncil [2004] In carrying ut their investigatin int the applicant s alleged miscnduct, Cuncil lst sight f thse relevant plicies which prvided a framewrk fr prcedural and substantive fairness. One such plicy stated that infrmatin n the emplyee's rights, the maintenance f cnfidentiality and the pprtunity t respnd t allegatins and prpsed adverse cmments shuld be an integral part f the prcess. As such, Cuncil willingly and, in sme cases recklessly r dishnestly, fed [an investigating agency s] appetite fr any material negative t [the applicant] that might well reflect upn their wn prfessinal vulnerability. 15

16 Key pints By way f summary, Cuncil shuld: Cmpse a plicies and prcedures manual detailing what yu expect f emplyees, including pssible disciplinary cnsequences if plicies nt cmplied with; Keep recrds f relevant encunters/meetings with members f staff; Issue warning letters, keep cpies and fllw-up; Avid summary dismissals if pssible; Give the emplyee a chance t state their case; and Seek legal advice quickly if things g wrng. 16

17 References Industrial Relatins Act 1996 (NSW) Fair Wrk Act 2009 (Cth) Paris v. Bankstwn City Cuncil [1999] Dunn v Waverley Cuncil [2013] Smith v Walgett Shire Cuncil [2010] 5CA2577F1007B0039?OpenDcument Allisn, Anthny v Bega Valley Cuncil [1995] Frd v Gsfrd City Cuncil [2004] 17

18 Questins / Cmments? 18

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