A recent decision of the Fair Work Commission suggests that an employee’s negligence may no longer be grounds for instant dismissal.

In John v The Star Pty Limited, the applicant had been employed as a security officer by The Star casino in Sydney. Mr John failed to thoroughly check false identification presented by a minor who was allowed to enter the casino floor.  This led to an investigation by the casino regulator, which resulted in The Star casino being fined $5,000.  The Star casino summarily dismissed Mr John on the grounds that he had been grossly negligent. 

Commissioner Cambridge of the Fair Work Commission decided that the security officer had been unfairly dismissed and that he should be reinstated.

The Commissioner accepted that the security officer was deficient, and perhaps negligent, in only conducting a cursory examination of the minor’s presented identification. However, despite the serious consequences of the security officer’s actions for the casino, the Commissioner was not satisfied that the security officer’s unintentional conduct warranted summary dismissal.

The Commissioner made four general comments of particular interest:

  1. Summary dismissal should usually only occur where an employee has engaged in deliberate misconduct.
  2. A small business seeking to justify a summary dismissal must ordinarily prove that an employee’s actions were intentional, rather than negligent or incompetent, as a requirement of the Small Business Fair Dismissal Code.
  3. Larger businesses will generally be expected to at least comply with, and ordinarily exceed, the requirements of the Small Business Fair Dismissal Code when dismissing employees.
  4. An act of gross negligence will only warrant summary dismissal in limited circumstances, such as where it causes substantial loss or damage to the employer.

The Commission’s decision highlights the difficulties for employers in summarily dismissing an employee for misconduct or negligence. An employer may find itself the subject of a successful unfair dismissal claim not because an employee’s conduct did not warrant dismissal, but rather because the employee was summarily dismissed (rather than with notice and as a result of a formal disciplinary or performance-management process).

Employers should therefore:

  • be wary when dismissing employees for misconduct or negligence that is not clearly deliberate or wilful on the employee’s part; and
  • take heed of the expectations for fair dismissals set out in the Small Business Fair Dismissal Code when dismissing employees protected by unfair dismissal laws.