Employment: Sacked Without Notice or Warning

What circumstances warrant the sacking of a worker without notice or warning? A case study by Adelaide employment lawyer Belal Moraby.

I recently wrote about how employers need more than a valid reason to sack an employee.  You can read that blog here.

In the case of John v The Star Pty Ltd [2014] FWC 543 the worker (Matthew John) was summarily dismissed (basically, without notice or warning) as it was alleged that his conduct amounted to a serious breach of his duties.

John was employed as a security officer at The Star Casino in Sydney.  He was delegated to work as a member of the Welcome Team which required him to stand across the entrance and identify people who appeared to be under 25 years of age and beckon such people to produce identification to verify that they were at least 18 years of age (known as “vetting”).

At about 11.36 pm on Saturday 27 April 2013 a 17 year old female attempted to gain entry to the Marquee Night Club.  She was ejected from the casino but it was discovered by security staff at the Marquee vetting point that she had managed to gain entry to the main gaming floor of the casino via the Harbour side entrance which was where John was situated.  The employer investigated the matter and after considering CCTV footage it was established that the minor had gained entry via the Harbour side entrance when she produced ID to John who permitted her entry without performing a thorough vetting of her ID (ie. without looking back up at her to verify her identity).  On 2 May 2013 John attended a disciplinary meeting with the employer’s managers.  He was questioned about the incident.  He admitted that he did not perform a thorough vetting of the minor’s ID.  However, he suggested that there were particular circumstances which contributed to his less than adequate examination of the minor’s ID.

He said that he was stressed and distracted due to there being insufficient staff on the Harbour side entrance on that particular night and that the team leader was absent at the time and although he had asked for assistance this had not been provided.  The meeting was adjourned to allow the employer’s managers to consider the applicant’s explanations and after a break of 35 minutes the disciplinary meeting resumed and John was told that his employment was summarily terminated for failing to conduct a proper ID check.  Some 22 days later he was provided with a formal letter specifying immediate termination of his employment due to a serious breach of his employment duties.  John had been a security guard with The Star Casino for five and a half years.

As discussed in my previous blog referred to above, on considering whether a worker has been unfairly dismissed, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable, taking into account the criteria specified in Section 387 of the Fair Work Act 2009.  It can be found here.

In the present case Commissioner Cambridge emphasised that any employer should be very cautious about invoking a summary dismissal, as opposed to dismissal with the required notice.  The employer argued that the applicant was summarily dismissed for an act of alleged gross negligence.  However, Commissioner Cambridge held that upon proper analysis, the applicant’s admittedly deficient work performance did not constitute the gross negligence which might justify summary dismissal.  He commented:

“The applicant’s conduct did not involve the grave, serious or significant departure from the standard of care which should have been exercised and which caused substantial loss or damage to the employer, such as would be necessary to provide valid reason for his summary dismissal. Regrettably, the employer adopted entirely unreasonable standards and expectations of the particular performance by the applicant.” In response to the method of dealing with the worker’s deficient work performance, he commented “Natural justice is denied if a person is required to respond to allegations at the time that the details of those allegations is first conveyed to them … the decision to dismiss the applicant was a completely disproportionate overreaction to the negligent action of the applicant.”  

It was held that John’s dismissal was harsh, unjust and unreasonable.  Commissioner Cambridge made orders for reinstatement of John’s employment.

Employers must therefore adopt reasonable standards and expectations of the performance of workers.  Where they deem a worker’s performance to be lacking the law provides that employers must afford the worker procedural fairness in relation to the investigation process and proposed termination.

For advice about your unfair dismissal or employment law matter, contact your nearest TGB location.