It has always been available to employers to instantly dismiss an employee and not pay Notice. But the circumstances in which this scenario is supported by the Unfair Dismissal regime under the Fair Work Act have narrowed over the years, as a recent case illustrates.
The matter involved a Senator’s office staffer who had sent what were described as threatening texts to an MP from an opposing party. The Senator, when advised, was appalled by the behaviour. She summarily dismissed the staffer by email (as he was on leave) and did not pay Notice.
He applied for relief to the FWC which found that the behaviour complained of was, in the end, fatal to the continuation of the employment relationship, but nevertheless ordered compensation.
The reason for this outcome went to natural justice, or as it is better known in this jurisdiction, procedural fairness. That is, the staffer had an excuse, albeit a tenuous one, but he was still entitled to a “fair go”, to put something forward in his defence. The staffer claimed he had a whistle-blower hat on when he acted, so his instant dismissal without payment in lieu of Notice was harsh.
The FWC explained in its decision that the possible outcome of a fair hearing to explain his argument, while it would likely have not dissuaded the Senator from terminating the employment, may have dissuaded her from summarily dismissing the staffer. The FWC ordered one week’s pay by way of compensation.
This case is not unique. The FWC is vigilant when it comes to proper process in cases of employment termination. Employers are expected to hear the employee’s side of the story (except perhaps in the most egregious of cases where the behaviour is beyond doubt and involves serious matters), so that a chance at least has been given for the employee to explain themselves. That didn’t happen here, despite the sophistication of the employer’s organisation.
The FWC is sympathetic to the notion that employers almost always do not have the resources to conduct forensic investigations and take their time, with the employee still being paid, in deciding how to handle these situations. But wherever an employee is summarily dismissed without Notice, the FWC will need to be convinced such a course was strongly justified.