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Do you KNOW how to dismiss an employee?

By Portner Press on May 22nd, 2019
  1. Termination of Employment
  2. Dismissal

There are a number of instances where dismissal for a lawful reason may exist. For example, the dismissal may relate to poor performance, misconduct, dangerous behaviour, refusing to follow instructions or redundancy.

Prior to carrying out a dismissal process, you should consider whether there are any suitable alternatives, such as offering the employee further training or performance management, or issuing a warning.

Remember that dismissal is often distressing for an employee, and they may bring a claim against your business if they feel aggrieved.

Potential claims following dismissal include:

  • unfair dismissal;
  • breach of contract;
  • general protections; or
  • discrimination.

It is therefore important to maintain open channels of communication and provide the employee with support and assistance throughout the process.

By doing so, you will be in a better position to defend a claim brought by a disgruntled former employee if you can show that you:

  • followed a proper process;
  • complied with your legal obligations; and
  • are able to demonstrate compliance by having the relevant documentation at hand.

If the employee is covered by a modern award or an enterprise agreement, ensure that you are complying with the relevant consultation/procedural requirements before implementing the termination of employment.

Applying procedural fairness

Once a decision has been made to dismiss an employee, invite the employee to attend a meeting with you at an appropriate time and location.

If the meeting relates to a serious matter, such as unsatisfactory performance or misconduct, it is best practice to let them know that they can bring a support person (including an advocate or legal representative) if they wish.

You cannot unreasonably refuse if the employee requests to have a support person present at the meeting, otherwise you will risk the dismissal being considered harsh under the Fair Work Act.

Preparing for the dismissal meeting

Before the meeting, prepare an outline or a script of what you intend to say to guide you through the discussion and ensure that you cover your obligations.

Think about the potential questions the employee may ask you and prepare appropriate responses to them.

In the meeting, make sure that you:

  • discuss the reason or reasons for the dismissal;
  • provide the employee with an opportunity to respond to those reasons; and
  • consider what they have to say before implementing the termination of employment.

Doing these things will minimise the risk of the dismissal being considered harsh.

It is recommended more than one person representing the employer attends the meeting so someone can record the discussion and assist if the employee becomes angry or argumentative.

Providing notice of termination

Unless the employee is summarily dismissed (i.e. terminated without notice), you should inform them about the notice of employment termination that they are entitled to, and whether they are required to work out that period or whether the company will pay them in lieu of notice.

Whether you decide that you want the employee to work out their notice period or choose to provide them with payment in lieu will depend on the circumstances (e.g. whether the employee poses a risk to your organisation).

Note that under the Fair Work Act, you must not terminate an employee’s employment unless you have given the employee written notice of the day of termination, which cannot be before the day the notice is given.

You will also need to calculate and provide their statutory termination entitlements, including accrued and unused annual leave and long service leave (if applicable).

Following the meeting, make sure you provide the employee with notice of their termination in writing, confirming what was discussed in the meeting. The notice must stipulate an end date for employment that is not earlier than the minimum amount of notice that is required to be given to the employee (unless you are paying them in lieu of notice).

Following termination

Remember to appropriately announce to your current employees that the dismissed employee is no longer working for the business.

Need to know more?

In the Employment Law Practical Handbook you will find an entire chapter dedicated to dismissal.

By reading it, you can ensure you have covered every legal base in the dismissal process.

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