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Misconduct allegations – can we dismiss immediately?

Is an employer obligated to make an investigation into allegations of misconduct or can it proceed immediately to dismissal?

Q: One of our employees has made a serious sexual allegation against another employee. The allegations are such that the company wishes to terminate immediately the alleged offender’s employment. Under the Fair Work Act 2009, are we required, or legally obligated, to conduct an internal or external investigation before dismissing the alleged offender?

A: Where the dismissal is based on the alleged serious misconduct of the employee, the employer must conduct a full and extensive investigation into all the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.

Based on matters heard before Fair Work Australia (FWA) in similar circumstances, the evidence onus on the employer is satisfied if, in addition to the investigation:

  • it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond to them (s387(c)); and
  • that having done all those things the employer honestly and genuinely believed and had reasonable grounds for believing, on the information available at the time, that the employee was guilty of the misconduct alleged; and
  • that, taking into account mitigating circumstances either associated misconduct or the employee’s work record, such misconduct justified dismissal.

A failure to satisfactorily establish any of these matters would render the dismissal harsh, unjust or unreasonable.

It should be noted that, in the case of summary dismissal, the employer carries the onus of establishing from the facts that there was a valid reason for terminating the employee’s employment. Further, the standard of proof upon the employer is to show on the balance of probabilities that its version of the events has been made out in order to support a valid termination.

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