Many employers believe that they can reduce the risks of facing an unfair dismissal claim following the termination of an employee’s employment for misconduct by making a payment in lieu of notice. The rationale for this reasoning that either
(a) it is less likely that the employee will make a claim for unfair dismissal (which is possibly correct) ; or
(b) they will avoid the more onerous burden of proof which is involved in proving that the employee’s conduct constituted serious misconduct (which is definitely incorrect).
The fact is that a payment made in lieu of notice is not determinative of the question whether the dismissal was a summary dismissal within the meaning of the either the Small Business Fair Dismissal Code or the Fair Work Commission’s decisions on the more general issue of the onus and burden of proof in unfair dismissal cases involving allegations of misconduct or serious misconduct.
See Tiobe Pty Ltd v Chen (2018) FWCFB 5726 delivered 12 September 2018 per Ross J, Clancy DP and Lee C