Can I Get Fired For Fighting Outside Of Work

Yous might expect that if an employee gets into a concrete fight at piece of work, they tin be dismissed immediately. Not so fast- the law provides procedural safeguards that require employers to acquit a fair investigation and consider the circumstances of their employee before deciding to dismiss them.

In this article, I ready out the steps an employer should accept to minimise the risks posed by an unfair dismissal activeness by an employee who is accused of getting into a physical fight, while maintaining a safe working surroundings.

Step 1. Consider continuing the employee downwardly

If the employee is an OH&S risk to other staff members or there is a risk that they will compromise the integrity of the investigation, the employee should be stood down.

Employers accept a duty of intendance to all workers for their safety and welfare, including the employee.

Consider whether to call the police force. It is worthwhile gathering and documenting evidence early so it is bachelor as a part of the investigation.

Step 2. Conduct a fair investigation

It's important to conduct a fair investigation. Otherwise, the employee can litigate for an unfair dismissal or breaches of general protections.

The employer needs to balance three duties- to fairly investigate the alleged misconduct, support the employee who is the discipline of the investigation and maintain a safety workplace for the team.

Check whether a workplace policy, modernistic award, enterprise agreement and employment contract impose extra employee protections or requirements for the investigation process.

Mutual pitfalls include:

- Conducting the meeting without giving the employee detect in accelerate or giving them a gamble to nominate and arrange a support person

- Evidence- non gathering early plenty, not maintaining the integrity of the evidence

- Terms of reference are non articulate enough

- Faults in the investigation records

- Giving the impression of bias

- Not giving reason(south) for terminating the employee

- Not giving the employee support through the process

- Not giving the employee response rights

Example

In Dewson v Boom Logistics Ltd, an employee was dismissed for physically assaulting another employee.

Whilst the employer did conduct an investigation, information technology was poorly managed- in that location was insufficient evidence that the assault occurred and the investigation process was flawed. The employee was not given an opportunity to respond to the allegations made against him, nor bring his chosen support person and the employer relied on a by caput butting incident at an office party involving alcohol just did not consequence a alarm at the time.

Fair Work Australia ordered the employer to compensate the employee for unfair dismissal.

Stride 3. Make up one's mind the appropriate disciplinary activity- including dismissal

Legally, physical fights and assaults are more often than not regarded equally valid grounds for dismissal.

Notwithstanding, this is not e'er the instance. Legally, it'south of import to consider the following factors:

ane- The circumstances of the fight- Who started it? Was the employee acting in self-defence force or provoking the attack?

two- The employee's piece of work records: The length of service of the employee.

iii- Whether the employee was in a supervisory position- and therefore expected to exist an case.

The cases are clear that the whole circumstances of the fight must be taken into account, not just "who started it".

Provided a fair investigation has occurred, an employee's by record may not matter much if they were the instigator of the physical fight.

Example

In DP World Sydney Ltd v Lambley, an employee was dismissed for viciously punching and boot a co-worker multiple times.

He was employed for 30 years, was provoked and taunted by the victim over a long period of time. The incident was caught on CCTV. The employer had clear policies prohibiting violence. The employee planned the fight in accelerate. He had other options, simply chose to assault the victim, who did non fight back. The employer conducted a fair investigation.

The Court found that the employee was fairly dismissed.

Step iv. Advise the outcome of the investigation

The employee and the alleged victim should receive a letter from the investigator summarising the allegations and a finding whether the allegation is substantiated, unsubstantiated due to lack of show or disproven.

Step v. Disciplinary meeting

If the allegations are proven, the employer can choose to get-go the disciplinary process which tin include a alarm, demotion, terminating the employee- with or without observe

At the disciplinary meeting, information technology is of import that the employer provides the employee and opportunity to present what they feel is the appropriate disciplinary response. Then, the employer can decide and advise the employee the disciplinary outcome.

If an employer decides to end the employee'south employment on the spot (summary dismissal), the employer volition demand to be able to prove that the acquit was sufficiently serious to warrant termination without detect.

Mutual pitfall: Attending the disciplinary meeting with a pre-written termination letter.

Determination

Dismissing an employee can be a stressful and difficult experience to become right. It'southward important to go legal assistance to protect your business and avert unnecessary litigation.

Should yous take any questions, please exercise not hesitate to contact Caroline Mense of our office on carolinem@legalenablers.com or (03) 8691 3128 for all of your employment law and dispute resolution needs.

Y'all might be interested in:

• What is considered unfair dismissal?

• vii Traps of Workplace Investigations

• Employee five Independent Contractor: What's the Difference?

Can I Get Fired For Fighting Outside Of Work,

Source: https://www.legalenablers.com/post/can-an-employee-be-fired-for-having-a-fight

Posted by: rawlinsonhioname.blogspot.com

Share this post