Employment Law Firm Sydney - Pit-falls to avoid when dismissing employees
There are three common situations where an employer dismisses an employee:
A redundancy is where because of your operational needs or financial constraints you have to dismiss an employee.
Where an employee is dismissed because of redundancy, the employee must be given at least the minimum notice periods set out in legislation and awards. These minimum periods can range from four weeks to more than 15 weeks, depending on the length of service of the employee.
Note: Making an employee redundant must be for genuine operational reasons. An employee can make an unfair dismissal application if the redundancy is not genuine.
2. Serious misconduct
An employee may be dismissed without notice in certain exceptional circumstances where the employee has engaged in serious misconduct.
Examples of serious misconduct include engaging in sexual harassment of another employee, stealing from the employer or being involved in a physical fight at work.
Note: Even if an employer is convinced that an employee has engaged in serious and wilful misconduct, the employer must still afford the employee procedural fairness before making a decision to dismiss the employee.
Procedural fairness includes:
- Providing the employee with full details of their alleged misconduct.
- Giving the employee a fair opportunity to respond to the allegations.
- Allowing the employee to obtain advice.
- Allowing the employee to have a support person of their choice at any disciplinary interview.
- Conducting a full and fair investigation of the allegations against the employee.
3. Dismissal for unsatisfactory work performance or conduct
There will be occasions when an employer wishes to dismiss an employee because the employee’s work performance or conduct are unsatisfactory.
In such situations, the employer should give the employee adequate opportunity to improve their work performance or conduct.
Employment Law Advice – Steps that an employer should consider include:
- Providing the employee with adequate training.
- Providing the employee with counselling.
- Giving warnings to the employee.
- Affording the employee procedural fairness if intending to dismiss him/her.
If a decision is taken to dismiss an employee, the employee must also be given reasonable notice. Minimum periods of notice are set out in legislation and awards. These notice periods can range from one week to more than four weeks, depending on the period of service and age of the employee.
Specialist Legal Advice Essential
- If you are considering dismissing an employee and wish to avoid costly litigation, we strongly recommend that you first obtain legal advice from an employment lawyer.
- Our first consultation for all employment- related matters is free.
By Namrata Singh | October 21st, 2016