Dismissing an employee is rarely a happy task. It becomes even more difficult when an employer can be threatened with unfair dismissal if they do not follow the correct procedures. Fair work legislation and the National Employment Standards provide specific guidelines for the treatment of workers. These include minimum notice periods and specific pay entitlements that must be provided when dismissing an employee. The legal guidelines vary based on factors such as:
- Type of employee (full time, part time or casual, etc.);
- Reason for termination; and
- Length of employment.
One of the basic tenets of termination is that it must not be harsh, unjust or unreasonable. Accordingly, employers must take steps to resolve misconduct issues with the employee before dismissal.
As a general guide, employers must follow four steps.
- Education: Employers should provide employees with a workplace policy. A workplace policy is a manual/document that covers the do’s and don’t’s of a particular workplace. It should cover issues such as conduct, telephone, email and social media use, health and safety, drug and alcohol use, confidentiality, bullying and so forth.
Ideally you will provide on-the-job training both at the start of their employment and on an ongoing basis, so your staff know what is expected of them. This is especially pertinent for social media use. - Warnings: If the employee does the wrong thing, then the first step is to issue a warning. The warning needs to be clearly stated so that the worker understands that the behaviour is unacceptable and that further transgressions will result in disciplinary action.
- Written and verbal notices: If the warning falls on deaf ears and the behaviour continues, then the employer needs to issue a verbal or written notice. Putting it in writing is always safest as this will provide a paper trail if matters do not resolve.
- Opportunity to respond: The employee must be given an opportunity to respond to the notices before you can dismiss them. They also have the right to have a support person present during discussions with the employer if they request it.
There are a few situation where you can dismiss a worker without taking the four steps. For example, if the employee engages in serious misconduct such as violence, fraud or theft. In addtion, if you run a small business (15 employees or less), you can terminate an employee in the first 12 months and the employee cannot claim unfair dismissal.
Keeping records
We cannot overstate the necessity of keeping good employment records. If things go pear shaped with an employee, it is these records that will save the day or at least give you the best fighting chance if you are taken to court. You should keep a record of their employment agreement, workplace policies, details of all conversations and copies of all correspondence, particularly written warnings and notices to the employee.
Getting help
If you run a small business, that has 15 employees or less, you can access the Small Business Dismissal Code and Checklist (provided by Fair Work) which will help you to work it out as long as you are complying with the legislation. You can also call Fair Work – they can advise you on your situation.
