What can you do to minimise the risk of unfair dismissal or unlawful termination claims?

Can you make an employee redundant because of their poor work performance?

What will an employee’s minimum entitlements be in the case of redundancy?

What do you do if you think an employee has abandoned their position?

Termination of employment is a complex and challenging area which requires employers to have understanding of the correct principles and procedures to be applied in terminating employees lawfully and fairly, in order to minimise the risk of successful unfair dismissal, unlawful termination claims or other discrimination claims being made against the employer.

“Terminating employment” is defined as being the voluntary or involuntary ending of the employment relationship by either the employee or employer.

A key aspect of the termination process is to be able to display and prove that procedural fairness has been followed. It is important that procedural fairness is provided in all termination processes, regardless of the type of termination. While employees in certain circumstances can be terminated without having been given time to improve, procedural fairness must still be provided through other aspects of the process.

“Procedural fairness” is about ensuring that the process by which the employment was terminated was fair an applied in a consistent manner and that the person making the decision acts on the evidence, having considered mitigating factors and the employee’s response before making a decision.

The termination process would not be viewed as being consistent with procedural fairness if it appeared that the decision to terminate the employment would had been made before the employee had been given a chance to respond and that similar performance or conduct by other employee’s has been condoned or treated as less serious.

If an unfair dismissal claim is lodged by an employee, in assessing the termination was ‘harsh, unjust or unreasonable’, the criteria based on the notion of procedural fairness will be taken into account by Fair Work Australia.

As the employment relationship can be terminated through a wide range of means, with the most common types of termination being resignation, termination with or without notice, redundancy and abandonment of employment, the type of termination will determine the appropriate process to be followed, for example:

Poor Performance or Misconduct

In the case of poor/unsatisfactory work performance or misconduct, the appropriate manager should first talk with the employee to discuss the performance/misconduct issue, allowing the employee to respond. It is important to determine why the employee is performing poorly or involved in any misconduct.  If all the correct performance management procedures have been followed, including the completion of written warnings and interviews with the employee, and the poor performance/behaviour continues, the employee’s employment contract may be terminated.

Serious or Wilful Misconduct

If an employee is involved in serious and wilful misconduct, such as theft or dishonesty, an instant dismissal may be justified, provided the employer has undertaken an investigation to ensure the employee has breached the employment contract.

Redundancy

In the case of redundancy, generally due to an employer no longer requiring anyone to perform a person’s job, employers should be aware that before any redundancies are made they must be a ‘genuine redundancy’, as defined under the Federal Fair Work Act 2009. The minimum notice of termination and redundancy pay provisions contained within the National Employment Standards must be adhered to unless the applicable Modern Award provides for such provisions.

Abandonment of Employment

If an employee is absent from work for a continuous period exceeding three working days without the consent of the employer and without notification, the employee may have abandoned their employment.  It is crucial that employers make a concerted attempt to contact the employee and make pertinent enquiries as to the circumstances surrounding the absence before any decision regarding the employee’s contract is made.

Before making a decision to terminate an employee, businesses are advised to seek professional advice. Employers faced with unfair dismissal, unlawful termination, workers’ compensation or discrimination claims should also seek professional advice as soon as they become aware that a claim is likely to be made against them.

How Can Business SA Help Your Business?

Business SA offers employers a wide range of services that can assist employers when dealing with discipline or termination issues.

Members are welcome to call our free Telephone Advisory Service any time between 8.00am and 5.00pm with any queries regarding the disciplinary and termination process, such as types of termination, processes, grounds, entitlements, and notice periods, etc.

Business SA’s team of expert consultants can assist in the event that you receive an unfair, unlawful or discrimination claim, through professional representation in Fair Work Australia in relation to unfair dismissal and unlawful termination claims and in the State Equal Opportunity Commission and the Federal Australian Human Rights Commission for claims of discrimination.

Also available to employers through Business SA is the Disciplining and Terminating Staff to Avoid Unfair Dismissals training course. This training course helps employers to gain an understanding of the correct principles and procedures in disciplining and if necessary, terminating an employee lawfully and fairly.

New Publication Available

Our new Terminating Employment in South Australia Booklet and CD-ROM - 2^nd Edition has been designed to provide employers with a user-friendly, plain English explanation of the critical issues regarding discipline, termination of employment and the unfair/unlawful dismissal provisions of the Federal workplace relations legislation, particularly as they affect the rights and obligations of employers. The CD-ROM contains pro forma sample policies, forms and letters, ready for you to tailor to your business’ specific requirements.

For further information, contact the Business Advisory Centre on 8300 0113 or visit our website at: www.business-sa.com.