Running a business is hard enough but add in the politics and legalities of employee dismissals – which nobody enjoys – and you’ve got yourself a regular nightmare. Under the Fair Work legislation if the manner in which an employee is dismissed is considered to be “harsh, unjust or unreasonable” then they be granted to up to six months pay by the Fair Work Commission. Similar to the costs costs associated with going to court, FWC hearings can be stressful, time consuming and resource draining and should be avoided at all costs.
Here’s the Lazy Lawyer’s guide to employee dismissals – follow this, and you’re less likely to end up before the FWC.
1. The opportunity to improve
Employer obligations are considerable so it’s no surprise to learn that there are very few situations where you can sack an individual on the spot. The wrongdoer needs warning and a clear outline of the reasons for why they are being let go.
Generally, employees should be given clear performance targets that are both reasonable and achievable. If they don’t meet them, provide them with constructive criticism. Should they persistently underperform, a warning is the first step towards eventual dismissal. What most employers don’t know is that there is no legal requirement for an employee to be given a certain number of warnings before termination occurs.
Step 1: Meet with an underperforming employee and discuss the problem
Step 2: Devise a plan to improve the situation, setting clear performance goals
Step 3: Set dates to meet and assess whether the goals have been met
2. Personality doesn’t come into it
Dismissing someone because of a personality clash is one quick way to land your business in hot water with the FWC. There will be office politics in any workplace, so as an employer you need to be aware that some employees may look to the grievance system as a means of blackballing others, to get rid of coworkers they either don’t like or believe are a threat.
A business is well within its rights to dismiss an employee who consistently underperforms or acts inappropriately but terminating someone on the grounds of being unpopular is likely to end in an unfair dismissal claim.
3. The opportunity to respond to allegations
Should allegations of misconduct or a lack of performance arise, the employer should relay the issue in full to the employee in question, who is then given opportunity to respond.
The most effective method is to outline the circumstances in writing, give the employee the chance to consider them, and then have them respond in writing or through a formal meeting. Even if you have made the decision to dismiss them, to remove the possibility of an unfair dismissal claim, the employer will still need to give them the opportunity to respond.
4. Play nice
Unfair dismissal claims are usually littered with feelings of anger, resentment and under-appreciation. When delivering a message which is unlikely to be received well, it’s not what you say but how you say it. The issue of dismissal is unpleasant for everyone involved but the way in which the employer conducts themselves will dictate whether the employee takes legal action against them.
Avoid being vindictive (even if the person deserves it) and ensure you comply with the notice requirements which depend upon the employee’s term of service.
5. Make sure the punishment matches the crime
As I mentioned earlier, there are very few circumstances which will justify immediate dismissal. The only situation where this is possible is if theft, fraud, violence of a serious breach of the workplace health and safety laws have been breached.
Should a serious breach occur, the matter should be reported to the police as this will help to allay any doubt should the matter be brought to hearing down the track.
6. Support Team
If it gets to the point where dismissal is to be discussed with an individual, it is an element of procedural fairness under the Fair Work Act to allow a support person to be involved in the discussions. In fact the FWC is required to consider whether or not an employee was given the opportunity to have a third party involved when discussing any issue related to dismissal when the commission is deciding whether to penalise the employer.
The obligations of a small business owner are numerous. Handling employee dismissal right from the outset will save you the angst of an FWC hearing, which should be avoided at all costs. This simple guide provides you with a basic checklist of what commitments need to be met before the act of dismissal can fairly take place.
Kate Horman is the founder of The Lazy Lawyer, a website dedicated to demystifying the Australian legal system by providing access to comprehensive legal documents and templates, without the hefty price tag. The goal: to deliver open and affordable access to justice instantly online.
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