You might expect that if an employee gets into a physical fight at work, they can be dismissed immediately. Not so fast- the law provides procedural safeguards that require employers to conduct a fair investigation and consider the circumstances of their employee before deciding to dismiss them.
In this article, I set out the steps an employer should take to minimise the risks posed by an unfair dismissal action by an employee who is accused of getting into a physical fight, while maintaining a safe working environment.
Step 1. Consider standing the employee down
If the employee is an OH&S risk to other staff members or there is a risk that they will compromise the integrity of the investigation, the employee should be stood down.
Employers have a duty of care to all workers for their safety and welfare, including the employee.
Consider whether to call the police. It is worthwhile gathering and documenting evidence early so it is available as a part of the investigation.
Step 2. Conduct a fair investigation
It's important to conduct a fair investigation. Otherwise, the employee can litigate for an unfair dismissal or breaches of general protections.
The employer needs to balance three duties- to fairly investigate the alleged misconduct, support the employee who is the subject of the investigation and maintain a safe workplace for the team.
Check whether a workplace policy, modern award, enterprise agreement and employment contract impose extra employee protections or requirements for the investigation process.
Common pitfalls include:
- Conducting the meeting without giving the employee notice in advance or giving them a chance to nominate and arrange a support person
- Evidence- not gathering early enough, not maintaining the integrity of the evidence
- Terms of reference are not clear enough
- Faults in the investigation records
- Giving the impression of bias
- Not giving reason(s) for terminating the employee
- Not giving the employee support through the process
- Not giving the employee response rights
In Dewson v Boom Logistics Ltd, an employee was dismissed for physically assaulting another employee.
Whilst the employer did conduct an investigation, it was poorly managed- there was insufficient evidence that the assault occurred and the investigation process was flawed. The employee was not given an opportunity to respond to the allegations made against him, nor bring his chosen support person and the employer relied on a past head butting incident at an office party involving alcohol but did not issue a warning at the time.
Fair Work Australia ordered the employer to compensate the employee for unfair dismissal.
Step 3. Decide the appropriate disciplinary action- including dismissal
Legally, physical fights and assaults are generally regarded as valid grounds for dismissal.
However, this is not always the case. Legally, it’s important to consider the following factors:
1- The circumstances of the fight- Who started it? Was the employee acting in self-defence or provoking the attack?
2- The employee's work records: The length of service of the employee.
3- Whether the employee was in a supervisory position- and therefore expected to be an example.
The cases are clear that the whole circumstances of the fight must be taken into account, not just "who started it".
Provided a fair investigation has occurred, an employee’s past record may not matter much if they were the instigator of the physical fight.
In DP World Sydney Ltd v Lambley, an employee was dismissed for viciously punching and kicking a co-worker multiple times.
He was employed for 30 years, was provoked and taunted by the victim over a long period of time. The incident was caught on CCTV. The employer had clear policies prohibiting violence. The employee planned the fight in advance. He had other options, but chose to attack the victim, who did not fight back. The employer conducted a fair investigation.
The Court found that the employee was fairly dismissed.
Step 4. Advise the outcome of the investigation
The employee and the alleged victim should receive a letter from the investigator summarising the allegations and a finding whether the allegation is substantiated, unsubstantiated due to lack of evidence or disproven.
Step 5. Disciplinary meeting
If the allegations are proven, the employer can choose to start the disciplinary process which can include a warning, demotion, terminating the employee- with or without notice
At the disciplinary meeting, it is important that the employer provides the employee and opportunity to present what they feel is the appropriate disciplinary response. Then, the employer can decide and advise the employee the disciplinary outcome.
If an employer decides to terminate the employee’s employment on the spot (summary dismissal), the employer will need to be able to prove that the conduct was sufficiently serious to warrant termination without notice.
Common pitfall: Attending the disciplinary meeting with a pre-written termination letter.
Dismissing an employee can be a stressful and difficult experience to get right. It’s important to get legal help to protect your business and avoid unnecessary litigation.
Should you have any questions, please do not hesitate to contact Caroline Mense of our office on firstname.lastname@example.org or (03) 8691 3128 for all of your employment law and dispute resolution needs.
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