Yukio Hayashi 06 Dec 2018
Q: I worked as a waiter at a restaurant for about two years. Yesterday, my employer suddenly said, "Did you steal cash from the cash register last night? Surveillance cameras caught you. You are fired. Get out now." I was fired without being given any opportunity to explain my situation. Is this an unfair dismissal? (waiter, 25-year-old male)
A: In principle, if an employee commits a serious misconduct in connection with his or her job, the employer can dismiss the employee immediately without notice. However, it is sometimes difficult to determine what action would result in an immediate dismissal. Often issues arise when there is no evidence proving the serious misconduct, and for that reason, an employee sues for unfair dismissal.
Such theft is a “serious misconduct” under the employment law, which can be justified as a reason for immediate dismissal. However, if the employee was falsely accused and fired unilaterally without being given the opportunity for clarification, this would likely be an unfair dismissal. In this case, the employer should show the CCTV footage to the employee, and give the employee the opportunity to explain his reasons. Once the theft is confirmed, then the employer needs to decide whether to terminate the employment contract.
Furthermore, "serious misconduct" includes not only theft and embezzlement, but also fraud, violence in the workplace, drunkenness, use of illegal drugs, violation of work regulations, conduct that threatens the safety of the workplace and that significantly impair the productivity and reputation of the company. An example of a case of serious misconduct would be one in which an employee sends emails with abusive words to their colleagues and business partners.
However, if your company is a “small business” with fewer than 15 employees, Australian employment law provides a provision that will make it easier to terminate employment contracts including the immediate dismissal of an employee due to a serious misconduct. It is presumed that for a small business, a serious misconduct has been committed if there is sufficient suspicion of illegal conduct. In one case there was a discussion over whether an employer sufficiently investigated the serious misconduct and whether the employee was given a reasonable opportunity to explain his situation. In that case, the court held that it was not an unfair dismissal on the grounds that a small business was not required to investigate an employee’s conduct as a big company would be. Moreover, in cases in which an employee was dismissed due to excessive use of illegal drugs outside of working hours, despite such dismissal being normally unfair, the dismissal was justified because of the employer’s small business status.
In the current case, if the restaurant is a small business and the surveillance camera footage satisfies “sufficient suspicion”, it is likely that an immediate dismissal would be justified.