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Surely, I can’t get taken to Fair Work for terminating an employee for that?

Updated: Jan 21, 2022

I want you to imagine the following scenario happened in your own business. And as you read, I want you to consider how you would react in these circumstances? Would you be justified in terminating the offending employee however you saw fit?

Scenario: Due to significant reductions in cash sales since moving an employee to the front counter you have had suspicions that someone may be stealing from the till. You decide to investigate this further and review CCTV / camera footage that is in clear view of the till. Upon reviewing the footage, it is evident that the employee has been pocketing the money from cash sales rather than putting them through the till. Further investigation shows that the employee has printed dummy receipts for the affected customers via the ‘test’ function on the till/program.

How do you proceed from here? Do you feel like confronting them employee and escorting them from the work site immediately?

This scenario is a real example that one of my now current clients were faced with. Unfortunately, this situation happens quite regularly. Employers that find themselves in this situation or one quite similar feel that they have every right to terminate the offending employee on the spot. I have on numerous occasions heard employers say ‘There is absolutely no way that Fair Work wouldn’t see their side of things and that they would be protected.’

Unfortunately, this thinking is flawed as it does not align with the requirements outlined in the Fair Work Act.

To emphasise the importance of following proper due process, I regularly use this analogy. Imagine that you a member of a jury and at the start of a trial the police present evidence that the accused was caught standing over the body with the murder weapon in hand. The initial evidence produced does not look good for the accused, however, during the trial, it is revealed that the police mishandled the evidence and broke the chain of custody. Does the case still look as promising for the prosecution? Unfortunately, in most cases, such a mistake can be enough to allow the accused to walk free. This means that even with conclusive evidence, a small technicality can bring down the whole case.

The same is true in relation to the correct disciplinary process. No matter the circumstances surrounding gross/serious misconduct all employers are bound to follow the correct due process. Some things for employers to remember are as follows:

  • The employer must give adequate notice to a disciplinary meeting to address the allegations. (to avoid further losses, reputation or brand damage an employer may choose to stand the employee down with full pay pending an investigation).

  • At the disciplinary meeting, the employer must table the allegations and allow the employee the chance to respond to the allegations.

  • Following the employee’s response, the employer should allow the employee to leave the room so that consideration can be shown to the evidence and response/s provided. Once this has been reviewed the employee may be brought back into the room and the final decision can be delivered.

  • A termination letter may then be issued. Please note that to go into the meeting with a termination letter already compiled may be perceived as a preconceived judgment towards the allegations.

No matter the circumstances and how emotional you may feel, always take the time to make sure that you have the correct due process mapped out or alternatively call Blackstone HR to assist you with this process.

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