Dismissal, and keeping it fair

by Oct 9, 2021All Posts, Human Resources

As Australians, we pride ourselves on our culture of “a fair go”, and that extends to the legal structure around businesses as well, with legislation in effect to protect both employer’s and employee’s rights.

In the case of a dismissal or termination of employment, it’s important that all legislation is adhered to, and there are fair reasons for termination. The law exists to protect workers from being unfairly sacked based on an employer’s personal grievance or as an overreaction to an event.

Reasons to dismiss an employee:

Much as it can be tempting to yell, “you’re fired!” and demand someone leave as they do in the movies, the reality is a lot more complex. Fair reasons for dismissal fall, generally speaking, into the following categories:

  • Capacity: The employee lacks the ability, or is incapable, of completing the job
  • Performance: The employee’s performance is below what is required for the job, or they are not meeting the standards outlined in their employment contract.
  • Misconduct: The employee’s behaviour is below workplace standards, or they take part in serious misconduct.
  • Redundancy: The job which the employee was previously completing is no longer necessary for the business, or technology has made their role unnecessary

It’s important to record any evidence you have against an employee, as this can be useful if you are ever accused of unfair dismissal. It’s also worth getting advice from someone experienced in HR legislation to ensure everything you’re doing is compliant with the Fair Work Code. Assurance HR is always on hand to discuss any situations you may be facing, and getting advice early can save you much time and money in the long run.

Ending employment properly

Whatever the reason you have for terminating someone’s employment, you need to give them a certain amount of notice (this changes depending on how long they’ve been working for you), and you need to give it in writing.

This table shows how much notice you need to give someone. Note: if an employee is over the age of 45 and have worked for you for at least two years you are obliged to give them an extra week’s notice on top of this:

Length of employmentMinimum notice given
Less than 1 year1 week
1-3 years2 weeks
3-5 years3 weeks
Over 5 years4 weeks

It’s important to note that these minimums apply in all circumstances, including an employee currently on leave, or on probation. The only circumstances in which this does NOT apply are in situations of serious misconduct.

Unfair dismissal

A person can make an unfair dismissal claim if they have:

  • Completed the minimum employment period
  • Are covered by a Modern Award (or award-based transitional instrument) or if an enterprise agreement (or agreement-based transitional instrument) applies to the person

A person has been unfairly dismissed when the Fair Work Commission is satisfied that:

  • The person has been dismissed
  • The dismissal was harsh, unjust, or unreasonable
  • The dismissal was not a case of genuine redundancy
  • The dismissal was not consistent with the Small Business Fair Dismissal Code, where the employer is a small business.

The Fair Work Commission looks at the following criteria to decide if a dismissal was harsh, unjust, or unreasonable:

  • a valid reason for the dismissal related to the employee’s capacity or conduct
  • was the employee notified of that reason and given an opportunity to respond
  • if the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable
  • whether the employee had been previously warned that their performance was unsatisfactory
  • If the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee, and
  • any other matters that the Fair Work Commission considers relevant.

If you’re thinking about terminating someone’s employment it’s worth getting all the facts first. Make an appointment to sit down with one of our Assurance HR team members, and we can make sure you’ve got everything covered correctly. Call us today on 1800 577 515.

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