As we are all well aware, employee misconduct is an unpleasant aspect of the Hr world that we must all deal with at one point in our careers. From a legal perspective, when making the decision to fire an employee due to serious misconduct, there are several issues that must be considered.
The law requires that the employee be issued with a written notice of termination –how much notice an employee is entitled to receive then depends upon how long they have been with the business on a continuous basis.
As a general guide:
|Employee’s period of continuous service with the employer at the end of the day notice is given||Period of Notice|
|Not more than 1 year||1 week|
|More than 1 year but not more than 3 years||2 weeks|
|More than 3 years but not more than 5 years||3 weeks|
|More than 5 years||4 weeks|
There is no singular approach to how an employment contract should be terminated when serious misconduct has occurred. Naturally, this will depend upon the employee, the business and the nature of the misconduct. As a very basic rule of thumb, the employer should ensure that each case is thoroughly investigated to avoid making assumptions. This will also ensure that dismissal is not considered harsh, unreasonable or unjust, and is consistent with the Small Business Fair Dismissal Code.
To avoid the possibility of the dismissed employee suing based on the grounds of unfair dismissal, we advise against instant dismissals. The employee should be given a fair hearing and the opportunity to respond to allegations made against them.
It is important that any allegation of serious misconduct is investigated thoroughly and fairly, and that any allegations are substantiated by reference to clear evidence before an employer terminates an employee’s employment summarily for serious misconduct. Always keep records of all misconduct occurrences, meetings, and the process to coming to a decision.
It would be best to seek legal advice if you are in this as the process can easily become out of hand. Also, employees whose employment is terminated summarily will still be entitled to payment in relation to their outstanding annual and long service leave entitlements. It is important to remember that, once an employee has been terminated, there are still legal obligations you must tend to.
Article by – Lauren Smith – The Quinn Group –www.quinns.com.au