Fact Sheet: Dismissal by the Employer

If you have made the decision to terminate an employees employment with you, there are only a certain number of valid reasons you can terminate their employment.

• Capacity or Underperformance
• Conduct (Misconduct & Serious Misconduct)
• Genuine Redundancy

Questions to ask

• How long have they worked for you?
• Is the employee still in their Probation Period? This links to the amount of notice somebody might give. i.e.. in their employment agreement they may have the minimum of notice required during probationary period, that increases post their probation period.
• Is the employee in their Minimum Employment Period? A minimum employment period is the qualifying period under Fair Work before unfair dismissal claims can be made against an employer. Small businesses are considered those with under 15 staff in accordance with the Fair Work definition and so small business employers are exempt from any unfair dismissal claims for a new employees initial 12 months, whereas for regular sized businesses (15 + employees) this is only 6 months.

Warnings

A warning process can include informal and formal procedure aimed at resolving a problem by one of two ways:

• Ideally, the employee improving their performance/conduct, or
• If failing to get an improvement in response to warning/s and support, termination of employment.

Processes should be fair and transparent to both the employees and the employer.

When do I start?

What is the issue that needs to be addressed?

• Behavioural
• Performance

Have you given informal feedback and the issue has not resolved?

Is the issue serious enough to go straight to a formal process?

Before you step into a disciplinary process you need to understand the issues, and do you have all the information you need to move forward? Do you understand the actions or outcomes required?

Capacity is the employee's ability to do the job as required by the employer. It also includes the employee's ability to do the job as required by the employer. It also includes the employee's ability to do the work they were employed to do.

The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at it objectively.

Underperformance occurs when someone is falling below the standard required. It is not a conduct issue as much as a shortfall in performance. It often relates to matters of quality or quantity of outputs, meeting targets or deadlines.

Matters relating to underperformance should first be supported by clarification of expectations, training and support prior to using formal warnings or disciplinary action.

Misconduct occurs when a behavioural issue results in expectations not being met. It concerns the poor conduct of the individual, rather than any skill or knowledge deficit as with performance issues. It often relates to attitude issues, disregard for rules or failure to obey or adhere to set standards, for example attending work on time or following company procedures.

Misconduct can also be supported by clarification of expectations, training and support but may also attract disciplinary sanctions if evidence supports that the person did, or should have reasonably known, what was required and has breached a requirement.

Serious misconduct is conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. It is not determined by how serious you consider it or how it feels to you.

This can occur when an employee:

• Causes serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer's business, or
• Deliberately behaves in a way that's inconsistent with continuing their employment.
• Examples include:
• Theft
• Fraud
• Assault
• Being drunk at work

Serious misconduct generally results in serious outcomes such as final warnings or termination of the employment relationship.

Procedural Fairness

When it comes to terminating, you need to provide procedural fairness by:

• Telling the employee what the issue is
• Giving the employee a chance to tell their side of the story
• Demonstrating you have considered their response
• Warning the employee that their performance/conduct is not good enough and that they can loose their job if they do not improve
• Not unreasonably refusing the employee to have a support person
• Giving the employee an opportunity to respond to the disciplinary action that is being considered before the decision is made
• Following company procedures

Termination Meeting

• Arrange a formal meeting with the employee, explaining what the meeting is about.
• Offer a support person.
• Explain the exact nature of the problem, giving examples.
• Detail any history, previous related matters and warnings.
• Details the employees performance/conduct since the previous warning.
• Give the employee the opportunity to respond to the allegations.
• Consider the employee's response to the allegations. If the response is not regarded as satisfactory, termination can follow, after the meeting and their response has been considered.
• Taken sufficient time to weigh up the employee's response. Often this may involve scheduling a second meeting to advise decision and outcome.
• Provide the employee with the reason for termination in writing.
• If the termination is not relation to serious misconduct, ensure the employee is given the appropriate notice (or payment in lieu of notice). any outstanding wages and entitlements accrued such as annual leave, long services leave (if applicable) etc.
• Payment for outstanding entitlements should be made on the day of termination or within the next pay cycle.

Support Person

While it is good practice, there is generally no requirement for an employer to offer a support person at a disciplinary meeting.

However, an unreasonable refusal to allow an employee to have a support person present at a disciplinary meeting may contribute to a finding that a dismissal was unfair.

A support person may:

• Give emotional support to the employee
• Assist then in preparing for the meeting
• Advise the of various options they may have
• Assist them to work through those options
• Assist the employee to present their views or concerns in the meeting
• Ask for a break if the employee is becoming upset or emotional
• Ask questions to clarify the process if needed
• Take notes

A union representative is able to be a support person, and is able to speak on their behalf.

A support person may not:

• Take over the meeting
• Act as a representative of the employee
• Speak for the employee
• Tell the employee what they should or should not do
• Be rude or aggressive to others in the meeting
• Act as a support person if they are in some way involved (i.e. are a potential witness)
• Provide personal opinions

Unfair Dismissal

An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and Fair Work Australia (FWA) finds that:

• the employee was dismissed, and
• the dismissal was harsh, unjust or unreasonable, and
• the dismissal was not a case of genuine redundancy

What they look for is procedural fairness.

An employee has 21 days from date of termination to make a submission for unfair dismissal claim. The free for submitting an unfair dismissal claim is $77.80 (May 2023).

General Protections

Fair work Act 2009 (Cth) also contains general protections.

• Operates to protect where adverse action is taken because of:
• Workplace Rights
• Industrial Activities
• Discrimination
• Where an employee is dismissed because of:
• Temporary absence due to illness or injury
• Available to past, present and prospective employees

An employee has 21 days from date of termination to make a submission for general protections claim.

*Image by JB Solicitors