When things go wrong - disciplining employees and serious misconduct

Being an employer can be a challenging juggle, especially in small business when the nature of the business means employees have to have a significant degree of autonomy and trust.

So what do you do when you are receiving complaints about a staff member or if you are having issues with an employee’s work or other behaviours?

Even if you are a small business (which is defined in some parts of employment law as a business with less than 15 employees), you are still subject to the unfair dismissal legislation and may be pursued if your termination of an employee is harsh, unjust or unfair.

As a small business, you need to have good documented practice and procedure when disciplining employees. This is to ensure that before a decision is made that an employee relationship is untenable, you have done everything reasonable in the circumstances to make sure the situation is fair.

If an employee commits an act of serious misconduct, they may be immediately dismissed. However, there are very few circumstances which amount to such serious misconduct, I regularly speak with employer clients who are surprised that the difficult situation they are experiencing doesn’t amount to serious misconduct. Serious misconduct is limited to situations as severe as:

  • an employee stealing money or goods from the business;
  • an employee defrauding the business;
  • an employee threatening the employer or other employees, clients or any other such person in the workplace with violence or actually carry out violence in the workplace; or
  • Where an employee commits a serious breach of occupational health and safety procedures.

Prior to any dismissal, an employer should seek legal advice so that you have advice specific to the individual situation, particularly if unsure about whether or not an employee’s conduct could be considered serious enough to warrant summary dismissal. In circumstances where an employee’s conduct is not serious enough to warrant summary dismissal, there are a number of steps that should be taken

So, all of this may sound scary for a busy small business owner. That’s where I can help:

  • Reviewing (or establishing) your policies and procedures
  • Providing advice when you encounter difficulties with an employee
  • Advising you around terminations

Call 03 5445 1000 and ask for Riley Driscoll.

Business LawOFRM LawyersO'Farrell Robertson McMahonunfair dismissal, dismissal, employment, terminating employees, unfair termination