Employment & Industrial Relations
5. Dismissing an Employee
Firm / Chambers:
Last updated: 26 Jul 2015
- It is important to take care when terminating the employment of employees. If not your business could be found to have terminated the employee’s employment unfairly, unlawfully or for a discriminatory reason.
- It is also important not to terminate an employee for exercising a protected workplace right.
- In both scenarios compensation or reinstatement and sometimes legal costs could be ordered against your business. A fine may be issued against your business or an individual of the business for general protections claims.
- The termination of an employee’s employment may be justified in the event of:
- poor performance;
- misconduct;
- dangerous behaviour;
- refusing to follow instructions; or
- if the position has become redundant meaning no one is required to perform the role any longer.
- The way the termination is conducted is important and will minimise the risk of liability for an unfair dismissal claim.
- You will need to provide the employee with notice of their dismissal or a payment in lieu (instead) of notice.
- The notice period required will depend on the terms of the modern award, enterprise agreement or contract of employment that the employee is subject to.
- Exceptions to the requirement to provide or to pay notice exist if the employee’s misconduct is so serious as to justify immediate dismissal.
- The employee should be dealt with fairly at all times. The following measures should be implemented to ensure any dismissal is fair within the meaning of the Fair Work Act:
- disciplinary policies and procedures should be developed and these procedures should be followed;
- employees should be given a fair warning to improve their performance and assistance or extra training if required;
- when the employee is notified of the reason for termination they should be provided with an opportunity to respond to the allegations and any responses should genuinely be taken into consideration;
- depending on the terms of the relevant award or agreement notice should be provided;
- in the event that meetings are conducted with an employee in relation to a disciplinary matter or termination of employment the employee should be allowed to have a representative present such as a fellow employee or union representative;
- the employee should be permitted to participate in an exit interview to provide an opportunity for the employer to learn ways of improving the business and its relationship with employees in the future; and
- final payments of outstanding entitlements must be made to employees on the day of termination such as:
- unused annual leave;
- wages accrued to date;
- pro-rata long service leave; and
- redundancy pay if required.
- More information can be found in our Disciplinary Hearings topic.
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