Notice & termination for misconduct

Q&A

Notice & termination for misconduct

Notice of termination is not required when an employee is justifiably dismissed for serious misconduct. Employers are sometimes unclear about how quickly they need to act in a ‘summary dismissal’ situation in order to avoid paying notice.

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Notice of termination is not required when an employee is justifiably dismissed for serious misconduct. Employers are sometimes unclear about how quickly they need to act in a ‘summary dismissal’ situation in order to avoid paying notice.

This issue was recently raised in a query to WorkplaceInfo.

Q. We recently dismissed an employee who engaged in the theft of company property. The dismissal occurred one week after the event, thus providing time to allow the company to arrange a proper investigation of the facts and gather the necessary evidence.

On the basis of the evidence, the company determined that the employee did steal company property. When presented with the evidence, the employee admitted to the thefts and was summarily dismissed.

The employee was not paid any notice because of the reason for the dismissal.

Should the employee be paid in lieu of notice of termination because of the time taken between discovery of the thefts and the date of termination?

A. The Workplace Relations Act (s661) requires the employer to give proper notice of termination to an employee, based on the employee’s years of continuous service with the employer. However, the Workplace Relations Act does not require notice of termination from the employer if the employee is guilty of serious misconduct.

Serious misconduct

The Regulations to the Workplace Relations Act identifies particular conduct that is deemed serious misconduct. This includes theft, fraud, assault, the employee being intoxicated at work, employee’s refusal to carry out a lawful direction from the employer, conduct that causes imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business.

Industrial tribunals have usually determined that a reasonable period of time may be involved when investigating an employee’s conduct, although this depends on the nature of the conduct.

For example, an investigation of an employee’s alleged fraudulent act may take longer to investigate; whereas, an assault may involve less time to investigate.

In the above scenario, provided there was no undue delay in the company’s investigation of the thefts, or a delay that was outside the employer’s control (eg a crucial witness’s absence from work), the employer would not be required to pay in lieu of notice under the Workplace Relations Act.


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