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Let the punishment fit the crime: a lesson in proportionality in disciplinary action

12 September 2019
Man in a skyscaper looking out to the city

Unfair dismissals can be tricky - does the punishment fit the crime? This article explores the importance of proportionality in disciplinary action.

Procedural fairness is the foundation of any disciplinary process, however the Fair Work Commission (FWC) has issued a timely reminder for employers not to overlook the importance of proportionality when determining what disciplinary action to take.

Put simply, the punishment must fit the crime or you could find yourself on the receiving end of an unfair dismissal application.

 

The decision:

In Murkitt v Staysafe Security T/A Alarmnet Monitoring [2019] FWC 5622, Alarmnet relied on its social media policy and a provision within Ms Murkitt’s employment contract that she “not intentionally do anything that is or may be harmful to the Company” to summarily dismiss its longtime employee, Ms Murkitt, after she posted a Facebook post highly critical of her employers new management.

Alarmnet ticked all the right boxes in terms of its disciplinary process:

  • Was there a valid reason for the dismissal?
  • Was the employee notified of the reason for the dismissal?
  • Has the employee been given an opportunity to respond?

However, Alarmnet did not go that step further and consider, in the context of Ms Murkitt’s employment history and personal circumstances, whether her actions were sufficiently serious to warrant summary dismissal. This is where things unraveled for Alarmnet and their dismissal of Ms Murkitt was found to be harsh in such circumstances.

 

What factors were considered relevant in the FWC's determination that the dismissal was unfair?

It is important to note that the particular circumstances to be considered when determining the proportionality of the disciplinary action will differ on a case by case basis. However, this decision gives employers some guidance as to the types of factors to consider:

  • Length of service: Ms Murkitt had been employed by Alarmnet (and its predecessor) for almost 15 years;
  • Mental health: Ms Murkitt was suffering from a psychological condition known to Alarmnet at the time;
  • Lack of remorse/taking responsibility for actions;
  • Lack of previous performance issues: the Facebook post was a single ‘one-off’ event and Ms Murkitt did not have a history of poor performance; and
  • Financial harm: Alarmnet suffered no financial harm as a result of the post.

As Alarmnet found out, it is important that employers do not overlook the importance of the principle of proportionality when taking disciplinary action against an employee, particularly where that action could result in dismissal.

If you require further information or have any queries in relation to this legal update, please contact Sina Zevari


We would like to acknowledge the contributions of Nicole Davis and Brittany Turner to this article.

Further Reading