Firing a difficult employee? You need to be fair

By Bethany Silverman

When running a business, you may come across employees whose conduct is less than satisfactory. In some cases, it’s tempting to terminate their employment on the spot. The Fair Work Commission (FWC), however, has sent a timely reminder to employers that procedural fairness must always be followed – even in cases where an employee’s conduct is so poor it would warrant termination.

In a recent case, Michael Lyle Jones v Karisma Joinery Pty Ltd [2020] FWC 5051, the termination of an employee after swearing, insulting and hanging up on his boss was found to be unfair, as a result of the lack of procedural fairness offered to the employee in question. The FWC determined that his summary termination by email was “harsh and unjust and deserving of remedy”, labelling the dismissal via email as “entirely inappropriate and unnecessarily harsh”.

The employee had worked for the employer for over five years. A dispute had arisen between the employee and his supervisors after he parked in a prohibited space at the warehouse in order to protect a motorbike that was tethered to his ute. The employer attempted to discuss the matter with the employee later that day over the phone, and the conversation became heated, with the employee calling the manager a “f***ing smart a**e” and hanging up. When the employer called him back, he confirmed that he had hung up, directed another tirade of abuse at his employer, and hung up again.

This conduct, which would strain any working relationship past its breaking point, clearly amounts to serious misconduct within the definition of the Fair Work Regulations and would therefore justify summary dismissal; and the employer did just that.

Within a few hours of the phone conversation, the employee was sent an email from the employer’s financial controller, terminating his employment. The employee, however, did not read his emails, and only learned of his termination when he presented for work the following day. He subsequently lodged an unfair dismissal claim.

So, where did the employer go wrong?

Although even in the employee’s own words, the conduct would have warranted disciplinary action, the employee was entitled to receive natural justice before a determination regarding his employment was made. The failure to allow the employee an opportunity to respond directly led to the determination that the dismissal was unfair.

The FWC reiterated that even where no mitigating factors have subsequently come to light which would have changed a business’s decision, “even argumentative and difficult people” are entitled to an opportunity to provide a response before they are dismissed.

In addition, the decision to terminate the employee via email was inappropriate. Termination via email or text message should be avoided unless there is a compelling circumstance, such as extensive distance, which would prohibit the ability to conduct the meeting face to face, or where the employee’s behaviour (such as being threatening or violent) creates a genuine safety concern.

While the amount of compensation was small in recognition that his employment would likely have been terminated in the near future in any event, this case highlights the importance of following procedural fairness, even in clear cut cases of misconduct. Employers should ensure that they keep a cool head, not let emotion cause them to make hasty decisions, and have processes in place to manage conduct issues, as even difficult employees are entitled to procedural fairness.

If you need assistance in managing your employees, contact HR Assured.

Bethany Silverman is a qualified Workplace Relations Consultant at HR Assured. She regularly engages businesses in matters of compliance and best practice. She has a particular interest in the performance management process.