‘Red Cards’ to misbehaving employees

Red Cards are generally issued to football players who:

commit a serious misconduct in a game; or
accumulate 2 yellow cards in a single game.

Players who receive the ‘Red Card’ must leave the field immediately.

Just as referees can instantly dismiss a player during a game, employers can issue the proverbial ‘Red Card’ to misbehaving employees, terminating their employment without notice.

‘You’re fired’

Under the Fair Work Act 2009 (Cth), an employer can summarily dismiss an employee if the employee has engaged in ‘serious misconduct’^[1]. ‘Serious misconduct’ is defined under the Fair Work Regulations 2009 (Cth) (Regulations) as^[2]:

wilful or deliberate behaviour by employees inconsistent with the continuation of the employment contract; and
conduct that causes serious and imminent risk to:
1. health or safety of a person; or
2. reputation, viability or profitability of the employer’s business.

The Regulations also deem the following conduct as serious misconduct:

employee, in the course of employment, engages in theft, fraud or assault;
employee being intoxicated at work;
employee refusing to carry out a lawful and reasonable instruction consistent with the employment contract .

Issuing the ‘Red Card’

Where an employee’s ‘serious misconduct’ has been discovered, it is vital employers adopt the following procedure to minimise the risk of unfair dismissal claims.

Arrange a meeting
Promptly arrange a meeting with the employee to discuss the misconduct (the employer must allow the employee to have a support person present).

Present facts
Present all the facts and evidence at the meeting to the employee that surrounds the alleged misconduct.

Allow opportunity to respond
Allow the employee to respond to the allegations, whether in that meeting, or via a written explanation later.

Keep records
Confirm the facts of the alleged misconduct and the employee’s response in writing to the employee.

Make a decision
Objectively consider the evidence and the employee’s response. Only then make a decision.

Issue termination letter
The termination letter must be in writing, and the employer should ensure it includes:
1. the reasons for the termination;
2. when the employment will end; and
3. that some termination payments may result in waiting periods for Centrelink payments.

Following the above steps will not prevent a former employee from commencing an unfair dismissal claim. However, the employer will certainly be in a stronger position to defend it.

Drawing inspiration from the 2018 World Cup, employers may consider using Video Assistant Referees (VAR) to spot potential ‘Red Card’ incidents at the workplace!

^{[1] Fair Work Act 2009 (Cth), s 123.}
^{[2] Fair Work Regulations 2009 (Cth), Reg 1.07.}

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