John Pinawin t/as Rosevi.Hair.Face.Beauty v Mr Edwin Doringo [2012] FWAFB 1359

A full bench decision of Fair Work Australia has found that the summary dismissal of an employee whose work performance was affected by recreational drug taking was consistent with the Small Business Code and was not, therefore an unfair dismissal.

Key issues

In arriving at its decision, the Full Bench was required to consider the reference to summary dismissal contained in the Small Business Code at s396 of the Fair Work Act ('FWA').

It states:

'It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.'

In light of this reference, the Full Bench gave consideration to what would constitute 'reasonable grounds' in order to satisfy the Small Business Fair Dismissal Code. It said: 'there are two steps in the process ... '[f]irst, there needs to be consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal; and the second step is to consider whether that belief was based on reasonable grounds.''

The Full Bench expressed that the second step 'incorporates the concept that the employer carried out a reasonable investigation.' It is not necessary to determine whether or not the employer was 'correct in the belief held.'

How can 'reasonable grounds be demonstrated'

The decision of the Full Bench makes it abundantly clear that there is no single course of action that would demonstrate the notion of 'acting reasonably.'

The FWA, however, requires demonstration from a small business employer that, in the context of it's experience and resources, it:

  • Carried out a reasonable investigation into the matter and / or conduct of the employee
  • Reached a reasonable conclusion on the basis of that investigation.

Comments

Some examples of how 'reasonable grounds' can be demonstrated include:

  • Reasonable investigation:
    • Observing an employee's performance at work for a period of time e.g. one month to assess any decrease in performance and possible causes and then notifying and discussing the outcome with the employee
    • Providing a written letter to an employee expressing any observations or concerns with respect to performance at work or a work-related incident causing concern and then inviting the employee to respond in writing
    • Arranging a face to face meeting with an employee to address any issues or concerns in the presence of a support person and documenting the minutes of the meeting in writing
  • Reasonable conclusion:
  • Informing the employee in writing or verbally (in the presence of a support person) the conclusion arrived at, which should be supported by a list of factors / reasons / beliefs gained through the investigation.

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