Harsh – but for who?

It’s just doesn’t sound right.

Fair Work Australia’s decision to reinstate a sacked work who was found to have committed numerous safety breaches because the worker had a mortgage, a young family and poor prospects of getting a new job has outraged the Australian Chamber of Commerce and Industry.

FWA found the employees actions involved “serious misconduct” and that the termination was neither unjust nor reasonable.

But it was harsh, because the employee had 20 years of service, poor education and limited job prospects.

In a world where we rightly take workplace safety so seriously – and the penalties metered out to companies are so big – it seems crazy that a person found to have committed serious safety breaches can be reinstated on the strength of their personal circumstances.

It certainly raised a lot of questions with us, such as what message does this send to the rest of the company’s workforce?

How deeply should an employer delve into an employee’s circumstances? In this case, FWA even cited the fact the employee had a $70,000 mortgage – how on earth was the employer supposed to know that?

And how serious does serious misconduct need to be before personal circumstances won’t override a termination?

But while the case might raise lots of questions for us, SmartCompany’s legal experts Peter Vitale and Andrew Douglas have pointed out that the requirement for employers to take into account an employee’s personal circumstances is nothing new.

Douglas says employers need to look particularly closely at employment history, length of service and age when considering a termination, as these will have a big bearing on the employee’s job prospects.

The case serves as a reminder for bosses of another quirk in the growing problem area of unfair dismissal. It’s not enough to ensure the dismissal is just or reasonable – you need to take these steps to look at each employee’s situation in isolation.

It’s yet another trap for employers – and one that will rightly leave them asking just who is being treated harshly.

The solution here, as always, is to make sure your workplace policies are firmly in place, particularly around performance management.

If you do dismiss an underperforming worker, the IR umpire is less likely to consider the termination to be harsh if you can show you followed clearly set out performance management processes, including warnings, retraining and counselling where appropriate.

Yes, that’s a costly, time-consuming process, but it’s the best way to steer clear of these messy cases.