A NEW WAY OF DOING THINGS A WHOLE NEW SET OF RULES
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by Christina Turner, Director, Cox Turner and Associates
procedurally fair to the employee * that the employee has had ample time to answer allegations and
In a world of constantly changing legislation in relation to the
workplace, there has always seemed to be a set of clear principles or rules which have guided us when making complex and difficult decisions in relation to staffing issues. Most of those principles have been with us for generations and indeed are across the entire workplace scene in Australia. Principles such as "its an employer's right to sack those staff who drink or fight in the workplaces" and "it's an employer's right to sack those staff who steal from us" are typical. Those principles, and the principle that an employer has the right to hire and dispense with labour as he/she sees fit, have been derived from Common Law and have until the last few years in Australia formed a large basis of our employment law. They have also been the guiding principles by which we have made human resource management decisions and framed our employment policies and procedures. We have traditionally classed actions
of theft, drunkenness, and fighting as "gross misconduct" and accordingly
our policies have reflected that summary dismissal is the appropriate course of action to deal with such incidents. Terminating the services of employees who steal from their employers either by way of theft of cash, fraud or pilfering of stock or materials has been as common to our large corporates as it has been to the corner milkbar. These rights to dismiss workers in
such situations have been rarely challenged by workers or their industrial representatives, indeed the vast majority of decisions arising from the industrial relations commissions throughout Australia have enforced the concept.
However with the advent of the
present his/her defence or explanation *
that the punishment "fits the
crime" Employers' failure to demonstrate the above has been responsible for a large
number of reinstatements and compensation decisions by the Federal Industrial Relations Reform Act of 1993 and the corresponding amendments to the state legislation in Queensland, we are beginning to see from Commission decisions relating to unfair dismissals, that the traditional common law principles and rights of the employer are changing to reflect a greater burden of proof on the employer to take into account a new set of principles and
concepts when contemplating termination of employment. These principles and concepts are also derived from common law and indeed "natural justice" and can sometimes appear on the surface to be in contrast to other common law rights and principles. This apparent conflict can be demonstrated most in the area of summary dismissal.
Whilst the employer's right to summarily dismiss still applies, the actions by the employer leading up to such a dismissal and the context of the employee's actions, are crucial in determining the fairness of such a dismissal. The changing burden of proof for employers in relation to traditional summary dismissals includes an obligation to prove:
that a thorough investigation has been conducted * that the investigation observed "due process" and was *
Commission which have recently received lengthy media coverage in Queensland. In a recently reported case before Commissioner Bougoure, an ex -employee of a small cafe in Surfers Paradise was awarded $41,000 for unfair dismissal, when he was dismissed after allegedly stealing money in the course of managing the cafe business. It was clear that in their determination to dismiss the employee, the cafe did not conduct a full and thorough investigation and failed to take into account the story provided by the employee. his written judgement, Commissioner Bougoure said that there were exceptional circumstances In
and that it was unnecessary for him to make a specific finding on whether the employee had actually stolen the money. He said, "in my view, even if a person is technically guilty of
stealing, that does not necessarily justify a dismissal in all cases". To surmise however that it is now not possible to terminate the services of
employees who are guilty of gross misconduct, or that the rights of employers have now been diminished, would not in my view, be a fair or accurate judgement of the current industrial labour laws. Of more accuracy, would be to state that current industrial relations legislation
reflects a need for
a
greater
recognition of the principles of due process and natural justice in
Municipal Manager, DECEMBER 1995
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