Employee Termination Procedure

Terminating for serious misconduct

Serious misconduct by an employee is conduct that is considered to be serious enough to justify immediate termination, without notice. Such misconduct may include violence, theft, fraud, or a serious breach of occupational health and safety policies, for example. This will depend on your employee termination procedure.

Should an employee commit an act of serious misconduct, you may dismiss the employee immediately, without notice or warning. Of course, any outstanding entitlements, such as annual leave, must be paid, as well as the employee's salary and superannuation up to and including the date of termination. For more information about final pay, refer to our article on terminating employment.

What if an employee has not engaged in serious misconduct?

This is where the question of termination becomes far more challenging. While not intending to be a definitive guide, the following points may provide some help to employers who are considering whether or not the time is right to terminate someone's employment. Once again, this will vary depending on your employee termination procedure.

1. Do you have a valid concern or reason for termination based on the employee's conduct or capacity to do the job? Simply put, a valid reason will be well founded, sound and defensible and not capricious, fanciful or spiteful. Should you dismiss an employee for a reason not related to their capacity or conduct, you could be exposing yourself to costly and time consuming litigation.
2. Have you warned the employee about your concern? Putting an employee on notice that there is a problem with their capacity or conduct is vital to ensuring that any subsequent dismissal is fair and reasonable. While a warning may be verbal, we strongly recommend that all warnings are made in writing, so as to provide a more accurate record of the warning itself. Furthermore, rather than simply handing an employee a letter of warning, consider meeting with the employee to discuss your concerns in a professional and non-confrontational manner and then handing them the letter at the end of the meeting.
3. Have you told the employee that, if their conduct or capacity fails to improve, they could be dismissed? This is another crucially important step that far too often gets ignored or forgotten by employers. If a failure to improve may result in an employee losing their job, tell that to the employee. Not telling an employee this could very well be the deciding factor as to whether a dismissal has been undertaken fairly and reasonably.
4. Have you given the employee an opportunity to respond to the warning and a chance to improve their capacity or conduct? It should go without saying that an employee who has been warned is provided an opportunity to respond and improve. Again, allow the employee an opportunity to sit with you and discuss the warning. How do they feel about it? Do they believe it is justified? Hear what they have to say and respond accordingly. With respect to allowing time to improve, the amount of time that should be allowed will depend upon the employee's duties and the conduct or capacity that requires improvement. If additional training or mentoring would assist the employee to improve their capacity or conduct, consider providing such assistance.
5. Allow an employee to bring a support person with them to any meeting at which their employment is to be discussed, should they so wish. Remember, a support person should provide emotional support only and should not be a lawyer or professional advocate.

Now What?

Only once you have complied with the above, and an employee's conduct or capacity has still not improved should you consider dismissing the employee. If you are a small business employer (you employ fewer than 15 employees), we strongly recommend that you review and complete the Small Business Fair Dismissal Code Checklist prior to any dismissal. Doing so may add a further layer of protection against any subsequent unfair dismissal claim.

Even with this information, we still strongly recommend that you seek professional advice prior to dismissing an employee. Every employee, workplace and dismissal is different. We can help navigate you through the often murky waters of this area of law to ensure the risk of an unfair dismissal claim is mitigated, as much as possible.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.