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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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