DISMISSAL FOR MISCONDUCT

Employee misconduct is a challenge that every employer will face at some point. When an employee violates workplace rules, corrective action must be taken. But what happens when the misconduct is serious enough to warrant dismissal?

The Code of Good Practice on Dismissal makes it clear that dismissal should be a last resort, and employers must prioritise corrective discipline over punitive measures.

So, how can employers ensure that a dismissal for misconduct is fair and legally defensible? Let’s break it down.

For a dismissal to hold up legally, it must meet three key requirements:

1. Substantive Fairness – Was there a valid and justifiable reason for the dismissal?

2. Procedural Fairness – Was the correct process followed before making the decision to dismiss?

3. No Automatically Unfair Reason – The dismissal must not be based on prohibited grounds (e.g., discrimination or retaliation).

If any of these elements are missing, the dismissal could be challenged.

Substantive Fairness Explained:

Substantive fairness refers to the justification for the dismissal. According to the Code of Good Practice on Dismissal, the following factors must be considered:

1. Did the employee breach a workplace rule or standard?

2. Was the rule or standard reasonable?

3. Was the employee aware of the rule or standard?

4. Has the rule been consistently applied to all employees?

5. Is dismissal an appropriate and proportionate response to the breach?

Procedural Fairness Explained:

Even if you have a valid reason to dismiss an employee, the process you follow is just as important. A dismissal that lacks procedural fairness can be ruled unfair, even if the employee was guilty of the misconduct.

The correct process must consist of the following:

1. Conduct an investigation – Before taking any action, investigate the allegations to determine whether there are grounds for dismissal.

2. Notify the employee of the allegations – The employee must receive a formal notice outlining the charges against them, in a language they understand.

3. Give the employee a chance to respond – The employee must have an opportunity to defend themselves in a disciplinary hearing.

Final Thoughts:

Dismissing an employee for misconduct is never an easy decision, but failing to follow the right procedures can expose your business to legal risk. The key takeaway? Substantive fairness and procedural fairness go hand in hand.

If you’re unsure whether a dismissal is justified or if you need guidance on handling a disciplinary process, seeking expert HR or legal advice is always a good idea.

Need help ensuring your disciplinary procedures align with best practices? Contact us today for expert HR consulting and support.