Termination for Misconduct
Learn why you can or may have been terminated and what the process of dismissal involves.
You may have recently witnessed or been notified of an employee’s misconduct. In fact, you may consider the employee’s behaviour so serious that it warrants dismissal. To legally terminate the employee’s employment contract, consider the following examples to find out whether it is likely that you can justify dismissal for misconduct.
Once you have identified whether the employee’s behaviour justifies dismissal, scroll down to find out what the appropriate procedure is to ensure you comply with termination requirements and avoid successful unfair dismissal claims.
1. The reason for dismissal – why?
Whether an employee’s misconduct justifies dismissal will depend on the degree of seriousness. For example, if an employee at a bakery steals a loaf of bread, a warning may suffice; if an employee at a bank misappropriates funds, a dismissal for misconduct may be justified.
If the dismissal relies on whether you have a workplace policy, you need to show that the policy has been communicated to the employees.
2. The process for dismissal – how?
- Conduct an investigation
Before deciding whether to dismiss an employee for misconduct, you should investigate the employee’s behaviour. There may be an investigation process set out in the policy.
If not, you may like to consider the following investigative procedure:
Step 1: Gather a written witness report.
Step 2: Meet with the employee to inform them of the investigation and allow them to respond.
Step 3: Determine on the evidence whether it happened, whether there were mitigating circumstances and what disciplinary action to take.
Step 4: Meet with the employee to give notice of dismissal.
- Give notice
A notice period is the length of time that you must give an employee to end employment. It should include the steps you have taken throughout the investigation, the reason for termination, the length of notice and the date employment will end.
How long should the period of notice be?
To dismiss an employe, you must comply with specified periods of notice. For example, an employee who has worked more than 5 years generally requires 4 weeks of notice. The full table is available here.
Your employee may choose to receive payment instead of working through their notice period. The pay will be equivalent to the amount the employee would have been paid, had they worked till the end of the notice period.
- Pay all outstanding payments
You should also pay your employee their final pay including the following entitlements:
– outstanding wages they have worked,
– any payments instead of notice,
– accumulated annual leave entitlements.
Dominic is the CEO of Lawpath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the 2015 Australian Legal Innovation Index.