During the employment life cycle, there will be times when an employee does not meet the requirements of the business or the expectations of their role. It is never an easy decision to dismiss an employee, and it’s important to tread carefully to avoid the possibility of an unfair dismissal claim being brought against the business.
Reasons for Dismissal
An employee may be dismissed when the employer initiates the termination of their employment due to:
- Poor Performance – the inability to perform role to an acceptable standard, following attempts to improve performance.
- Capacity – the inability of the employee to complete the inherent requirements of the role.
- Conduct – the breach of business policies or procedures.
- Misconduct – when an employee deliberately behaves in a way that is inconsistent with continuing their employment. Examples include theft, being under the influence at work, or behaviour that jeopardises the safety of others.
- Redundancy – when the role is no longer required within the business. See our blog on redundancy here.
Regardless of the reason for dismissing an employee, employers must ensure that the process is fair and reasonable.
Depending on the reason for dismissal, investigation and deliberation should be undertaken to determine the employee is at fault. During any formal meetings, in most cases the employee should be given:
- Reasonable notice of the meeting,
- The opportunity for the employee to respond to allegations made against them, and
- The option to have a support person. The support person can provide the employee with emotional and practical support during the meeting.
Failure to show deliberation or effort to allow the employee to improve their performance, could result in the dismissal being viewed as harsh or unjust. Therefore, special consideration and adherence to the Fair Work Act is important when considering how you approach dismissing an employee.
Meetings of this nature can be difficult, so being prepared is the best way to keep the meeting on track, and cover everything you need to in a clear and fair manner. Preparing a script or agenda will make sure you do not miss any important points. Think about questions you may be asked by the employee in the meeting, so you can consider your responses ahead of time. It is also a good idea to have another representative of the business in the meeting, to witness and take notes of the conversation.
When employment is terminated, the notice period you are required to give the employee will be outlined in their employment contract, and should also adhere to the Fair Work guidelines. The required notice period will also be dependent on the reason for dismissal. When an employee is dismissed for misconduct, they are not entitled to receive a any notice. It is always best practice to refer to the applicable modern award or National Employment Standards to ensure compliance.
The employee must be advised of their entitlements including notice periods in the meeting, and if they will be required to work out or their notice, or if it will be paid in lieu. Following this, a termination letter should be issued confirming all the details discussed in the meeting.
If you need help in the process of ending employment, contact our specialist team for a no obligation chat today.