FAIR REASONS

Employers are encouraged to adopt clear rules of conduct that are known to all employees. Some rules may be so well established or obvious that everyone can be expected to know them, for example that violence at work is not acceptable.

Dismissals for misconduct will only be fair if:

• The employee broke a rule of conduct in the workplace
• The rule was reasonable and necessary
• The employee knew of the rule or should have known of the rule
• The employer applied the rule consistently (there are no other employees who have been allowed to get away with this misconduct)
• It is appropriate to dismiss the employee for this reason, rather than taking less serious disciplinary action or imposing a lesser penalty such as a final warning

Corrective or progressive discipline must be used for misconduct. Corrective discipline aims to correct the employee and help them overcome the problem. Progressive discipline can get stronger every time the employee repeats the misconduct.

Employees should not be dismissed for a first offence, unless it is very serious, such as gross insubordination or dishonesty, intentional damage to the employer’s property, putting others’ safety at risk, or physical assault of a co-employee.

Employees can be dismissed for misconduct if they go on strike without following the procedures. The employer should contact a trade union official and tell the official of the planned dismissals and try to give employees an ultimatum with enough time to consider the ultimatum.

Before deciding to dismiss the employee for misconduct, the employer must consider the following:

• The employee’s circumstances (for example length of service, previous disciplinary record, personal circumstances)
• The nature of the job
• The circumstances in which the misconduct took place

FAIR PROCEDURES

Employers must keep records for each employee, which say what offences an employee committed, what disciplinary action was taken, and why the action was taken. If there is repeated misconduct, the employer should have warned the employee. A final warning for repeated misconduct or serious misconduct must be given in writing.

For a serious disciplinary matter, there must be a fair hearing:

• If the employee is a shop steward, the employer must first inform and consult the union before initiating the disciplinary hearing
• The employee must know in advance what the charges are against them
• The employee must be given enough time to prepare for a hearing (approximately 1 or 2 working days)
• The employee must be present at the hearing and be allowed to state their case
• The employee must be allowed to be represented at the hearing by a shop steward or co-employee of their choice
• The employee must be allowed to see documents and cross-examine evidence used against them
• The employer should bring all witnesses against the employee to the hearing
• The employee should have a chance to cross-examine witnesses called against them
• The employee should be allowed to call witnesses
• The employee must be given reasons for any decisions taken
• The chairperson of the hearing should be impartial and unbiased against the employee charged with misconduct

Sometimes, if the employer has only a very small business, there might be some leniency as to how the employer meets all these requirements.