So it has come to that unfortunate point where you have to dismiss someone, no one likes doing it. But before you go ahead and dismiss someone you need to carefully consider why you may want them to go. Being fired can be extremely emotional and can ruin an employee’s confidence. So it is important that managers have made sure they have made the right decision.
Before you go ahead and fire someone you need to understand the process that you need to follow. If you don’t follow the Fair Dismissal Code your employee could claim it was unfair dismissal.
Here is how the code works:
The commonwealth workplace laws set out specific rules and protections relating to the termination of an employment relationship. To start with it works on the size of your company, if you have 15 employees or less, then the employee can only claim after 1 year of employment. For companies that have 15 or more employees it is 6 months.
In addition to this one of the following must apply:
- An award covers this person
- Enterprise/Industrial agreement applies
- Person’s annual rate of earnings is below the high income threshold (1 July 2012 – $123,300)
Under the commonwealth workplace law you cannot terminate an employee on the grounds that are discriminatory. They cannot be dismissed for:
- Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion, national extraction or social origin
- Absent from work because of injury or illness (temporary absence)
- Trade union membership or non – membership
- Trade union activities outside work hours or with employers consent during work hours
- Acting as a representative of employees
- Maternity leave or other paternal leave
- Temporary absence to engage in a voluntary emergency management activity
- Filing a complaint or participating in proceedings against an employer
However there are employees that are not eligible to claim for unfair dismissal. These people are:
- Independent contractors
- Employees who have resigned (not forced by employer)
- Employees under contract either for period of time, specified task, season or till the end of the task.
- Employees who attended a training program for a specific period but their employment ended at the end of that training.
- If an employee has been demoted but the demotion did not reduce their remuneration or duties and remain employed by the employer
An employee who has been dismissed in the case of genuine redundancy is also not eligible to claim for unfair dismissal. Redundancy is where an employer has decided they no longer need the job to be done by an employee anymore. This means the job becomes redundant and not the employee. Redundancy can include: new technology has been introduced and does the employees job, downturn of business and staff reduction, a merger or takeover happens and the position is not required, insolvency or bankruptcy of the employer.
Small business employers who have dismissed someone and compiled by the Small Business Fair Dismissal Code are also exempt from an unfair dismissal claim. The small business fair dismissal code has three types of dismissal:
Summary Dismissal: The small business employer can dismiss an employee without notice or warning when the employer has reasonable grounds to believe that the employee was guilty of serious misconduct. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures.
Other Dismissals: In other dismissals, a small business employer must give the employee a valid reason based on their capacity or conduct to do the job if they are at risk of being dismissed. The employee must be warned verbally (or ideally in writing), that they risk being dismissed if there is no improvement. After that the employer must give the employee a chance to respond to the warning and a reasonable chance to rectify the problem.
Procedural Matter: An employee can have another person present to help them with discussions in circumstances where dismissal is possible. This person cannot be a lawyer acting in a professional capacity.
Whatever your reasons are for dismissing an employee you need to be sure you are following the dismissal laws correctly. A failure to follow this could result in an employee claiming unfair dismissal. Remember no one likes firing someone or being on the receiving end, and it does affect the employee’s confidence when this happens. Think about how you can help the employee perform better and give them the chance to improve. If you are looking for more information on unfair dismissal you can go to Fair Work Ombudsman – www.fairwork.gov.au.