Firing an employee is never easy. It’s imperative that your termination procedure aligns with Australia’s unfair dismissal laws and is based on an understanding of your employee’s rights.
Employment termination usually follows an employee’s ongoing underperformance or poor conduct. In some instances, a position might be made redundant.
When you notice an employee consistently displaying negative behaviours, it’s critical to have a conversation about the issue sooner rather than later. Before starting a formal disciplinary process, your business should have policies and procedures in place which focus on performance management, conduct, discipline and termination.
The Fair Work Australia website can provide information and advice about workplace rights and obligations. Businesses large enough to have a HR person or team should also draw upon their expertise.
Underperformance and misconduct
When an employee is underperforming – that is, failing to perform the duties of the position or up to the required standard – the first step is to put them on a Performance Improvement Plan (PIP). A PIP looks to work with the employee to improve their work conduct over a period of time reasonable for their role. For example, improved sales in the next quarter for a salesperson.
If this doesn’t help the situation, you should begin formal action.
When it comes to misconduct, which includes things like excessive internet or phone use, long tea breaks or ignoring security rules, formal action should be taken immediately.
Firstly, a warning (verbal or written) should be given to the employee, notifying them that their performance or conduct is unacceptable.
In the event that a disciplinary meeting is required, the employee must be given at least 24 hours’ notice and informed that they have the option to bring a support person. During the meeting, you must explain exactly why the employee is being disciplined. The employee must have the opportunity to respond. This response must be taken into consideration before disciplinary action is taken.
You should always keep written records of any meetings you have about an employee’s performance or behaviour.
A final warning is usually provided before termination (with the exception of serious misconduct such as theft, fraud or violence). It is best practice to provide that in written form.
In a final termination letter, you should include:
- Termination reason.
- Notice period and final day of work.
- Final pay amount.
If the termination is due to the position being made redundant, it is important to ensure the provisions of the Fair Work Act 2009 are followed, especially any consultation requirements.
Duty of care
You have a duty of care to your employees under safety legislation. Consider the employee’s state of mind when dealing with discipline and termination. An employee may be so worried about getting the sack that it affects their ability to work. Instead of allowing a person to agonise about being fired, work with them to ensure they understand the issue and are working to solve it.
When things get ugly: Unfair dismissal claims
Employees have 21 days from dismissal to lodge an unfair dismissal claim. Unfair dismissal is when an employee is dismissed from their job in a “harsh, unjust or unreasonable manner”.
In some situations, employees cannot make an unfair dismissal claim, such as when they have been with the employer for a short length of time, or when they earn above the high income threshold.
Prevention is always better than cure. Hiring the right employee for the job is a surefire way of ensuring you get the best for your business.
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