May 2018 – Unfair Dismissal – Capacity or Conduct – Part three in our unfair dismissal series

This is the final in our 3 part series on unfair dismissal, discussing the various triggers that may give rise to a sacked employee instigating a claim that their dismissal was harsh, unjust or unreasonable. Our newsletter in March gave an overview of what unfair dismissal is, what may be considered and the time constraints involved. April’s newsletter discussed where performance issues may give rise to an unfair dismissal claim. This final segment will focus on issues regarding a person being terminated for their capacity or conduct, and how, under certain circumstances, they may be able to claim that they were unfairly dismissed.

Capacity is the employee’s ability to execute the tasks and responsibilities of the position, as required by the employer. The concept of a person being capable to perform is a concept which in some positions may be permanent, or temporary. Even if they were temporary, they may be of a certain expected duration, which would make continued employment untenable. The Fair Work Act protects employees from being dismissed where their absence is temporary in nature and related to an illness or injury for a period up to 3 months. After three months, it becomes a question of whether or not the employee is likely to return to their duties in the short or medium term.

Where the conduct of an employee warrants dismissal, employers must make sure that they fully investigate the circumstances and be sure that the conduct did in fact occur. They must then consider, whether in light of similar actions of other staff and company policy, if the conduct warrants termination. In some instances, such as theft, it is quite apparent that continued employment is not a viable option in the circumstances. In other cases, an employees conduct may breach company policy, but depending on all the circumstances, even if the conduct did in fact occur, termination may be seen as a step too far.

Serious misconduct such as theft, fraud, assault, intoxication at work, refusal to carry out lawful and reasonable instructions and conduct endangering the safety and welfare of other staff, are all activities that are generally seen as valid reasons for termination. If the conduct relied upon as a justification for termination occurred outside of work hours, that conduct must have a relevant connection to the employment relationship. Criminal offences alone do not warrant dismissal, unless they result in the employee being unable to attend their employment for a significant period. This would more so bring the employment contract to an end due to the contract being frustrated. Case examples where proven conduct was a valid reason for termination:

  • Poor behaviour and attitude towards staff, customers and supervisors. Kolodka v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2012] FWA 7828
  • Employee making threatening comments about a colleague on Facebook. O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311
  • Covering up the theft of items by another employee.nWoodman v The Hoyts Corporation Pty Ltd PR906309
  • Refusing to remove eyebrow ring in accordance with company dress code. Woolworths Limited (t/as Safeway) v Brown PR963023
  • Sending an offensive email in breach of company policy. Anderson v Thiess Pty Ltd [2015] FWCFB 478
  • Improper use of workplace information in breach of company policy. Applicant v Australian Federal Police [2012] FWA 1352

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