The difficult part is describing the misconduct. An overview of legal procedure & case law. The meaning of “serious misconduct” by an employee in Australian employment law is plagued by controversy and uncertainty. The challenge with outside work misconduct is framing the charges. This has not always been the case, but it is now an important legal issue since the Fair Work Act 2009 came into operation. An ‘ordinary’ misconduct dismissal will generally only be fair if the employee has been given previous warnings which have not expired. We have been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, have remained fired. Judgment. There has been extensive case law regarding the appropriate sanctions for theft, especially in the case of petty theft. It is therefore very important for employers, before dismissing employees for off site misconduct, to get the case analysed by a labour law expert in order to check whether dismissal will be acceptable or not. Lawyers will frequently explain that every case must be considered on its own facts and merits. It has long been held that summary dismissal is the appropriate sanction for theft. Unfair dismissal is one of the most common types of employment law cases. Just Cause for Dismissal in Canada, twice every year, he reviews every just cause case in Canada. Dismissal for serious misconduct: When have you gone too far? STEENKAMP J . However, each case will be different and the employer cannot simply rely on the charge by the police. ... Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a … Unfair dismissal can take many different forms. The first example looks at a dispute around whether there was unfair dismissal or a resignation. Summary: Review – LRA s 145 – misconduct – gross negligence – ABSA v Naidu followed – dismissal fair – award reviewed and set aside. Legal Alert. This case highlights a dismissal could be ruled unfair if poor performance is mistaken for misconduct. Misconduct is the failure to fulfil the conditions of employment in the contract of service. THE DISCIPLINARY HEARING 3.1 Preparation for disciplinary hearing 3.2 Conducting the disciplianry hearing The other case explains that gross misconduct can be an accumulation of incidences rather than just one act. The procedure leading up to dismissal need not be formal or labelled as a disciplinary hearing, however, the employee must get an opportunity to state his/her case prior to being dismissed. What Constitutes Gross Misconduct? Misconduct on the part of an employee is one of the potentially fair reasons for dismissal set out in the Employment Rights Act. Senior deputy president Hamberger from the Fair Work Commission has ordered domestic postal freight company Startrack Express to pay one of its drivers $17,500 in compensation after it was found that the company had unfairly dismissed an employee of eight years. Dismissal for Misconduct and the onus at the CCMA: Workplace Rules In dismissing an employee, the dismissal should have two fundamental characteristics. The dismissal should be substantively fair, this meaning that the Applicant should be dismissed for a good reason. 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