Can an employee be fired for having a fight?

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