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Excerpt from this article first published in Human Resources Magazine, Issue 155 - 24 June 2008
The recent case of Johns v Brisbane City Council demonstrates the ability of employers to rely on evidence discovered after termination to justify a dismissal and provide further support for the dismissal.
Initially, the employee, Mr Johns was suspended from work pending an investigation into allegations of misconduct. While suspended, the employee was directed to return Council property in his possession. When the employee failed to return the property the Council issued a show cause letter asking the employee to justify why his employment should not be terminated.
The employee failed to respond to the letter and his employment was terminated. He was subsequently charged with theft of Council property and commenced unfair dismissal proceedings. The Council argued that it had a valid reason for terminating the employee’s employment based on:
the failure to follow the lawful direction to return Council property;
the fact the employee was charged with an offence; and
facts discovered after the decision to terminate (i.e. the employee subsequently pleading guilty to the charges)
The Commission did not accept the Council’s 2nd argument constituted a valid reason for dismissal because it did not take into account the outcome of the charges and whether the employee was guilty or innocent.
The Commission did accept that the Council’s 1st and 3rd arguments constituted a valid reason for dismissal. It found the fact that the employee was convicted of the theft of Council property after pleading guilty caused him to fatally compromise his employment contract such that the Council was justified in terminating his employment on that later evidence. In reaching its decision, the Commission relied on the long standing proposition of law that the dismissal of an employee may be justified upon grounds on which the employer did not act, and of which the employer was unaware when the employee was terminated.
Before terminating an employee’s employment (particularly those who have access to unfair dismissal laws) an employer should ensure that it:
has evidence to support its decision;
has afforded the employee procedural fairness in the process;
has considered whether termination is the appropriate sanction for the employee’s conduct having regard to severity of the conduct and the employee’s employment record.
In the event an employee brings proceedings after termination, an employer should also consider whether there is any further evidence available which could justify the decision to terminate or lend further support to that decision.
However, employer should not ignore evidence available prior to termination. If any employer doesn’t rely on a known fact at the time of termination the employer will not be able to rely on it later.
Beth-Marie Kitchener
Solicitor
