How To Dismiss an Employee

How To Dismiss an Employee

Employee dismissal is not supposed to be a difficult process. Unfortunately, some employers tend make it unnecessarily burdensome with roll on effects. As a last resort of dealing with employees, employers can often react without considering the full process and what is “Harsh, Unjust and Unreasonable”.

Employers that are not careful when carrying out the termination process soon find themselves on the wrong side of the law. When an employer does not have the knowledge of what is legal and how to conduct themselves during a dismissal, they find it impossible to prevent legal action against their business.

Imagine that sinking feeling when you receive a FWC – Acknowledgement Letter following the dismissal of an employee. Attached will be the F3 for your response. You have 7 calendar days to lodge your reply to the unfair dismissal application. You will then be sent a conciliation date and time. It can be very stressful if this is something you have not tackled before.

Various reasons can account for the dismissal; however, it is your duty as the owner of the business to act reasonably throughout the dismissal process. In other words, you are dismissing the employee with grace and within the frameworks that are set down by the FWC.

An employer must give the employee a reason why he/she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. An employer must provide an employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

The first step to dismissing an employee is to review the reasons for the dismissal. It is important to confirm all the pieces of information presented and verify the known facts before dismissing an employee. If deemed necessary, you should set up a meeting with the employee before the dismissal. You need to offer an employee a support person as part of this process.

Additionally, employers should confirm the legalities and legal implications that are involved before looking at or heading towards dismissing an employee. The Fair Work Act presents the due procedure to follow before dismissal is decided upon. The act frowns upon any act of discrimination, assault, harassment, breach of contract, and above all, wrongful termination. You need to be mindful or unlawful or adverse actions. It really is not a black and white process.

Pre-meeting procedures

  • Decide on what form the meeting will take and the paperwork that will be involved. You can decide on a script to aid the meeting or could decide against it.
  • Decide on who will be present during the meeting: this is a tricky area of the pre-meeting procedures that employers should be clear on.
  • On the part of the employee – they will need to be offered support during the meeting. Ask, in the meeting invite, if it is their wish to be escorted by a person to provide support.
  • On the other side, employers seeking to hold a disciplinary meeting need to be careful not to intimidate the employee. When the atmosphere is intimidating, the employee might perceive that it is action to get rid of him/her, and as a result, affect the conduct of the meeting. You also MUST be careful of predetermined outcomes. No decision should ever be made without obtaining all the facts.
  • The meeting should be held at a location that offers minimum disruption. By so doing, what is private will be kept private until you wish to disclose it.

You need to note that if you do receive an unfair Dismissal application as an employer you will be required to provide evidence including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements etc. These cannot be produced after the fact, so you need to get it right every time throughput the process. Fresh HR Insights can help with this.

How to conduct a disciplinary meeting that may lead to dismissal

During the meeting it is essential to provide an adequate explanation for the disciplinary – this would have already been set out in the disciplinary invite, you will go over it.  As an employer, where it is clear that the employee is indeed guilty of the allegations, you need to understand that a dismissal equals no more income, therefore, it becomes understandable if the employee gets angry or upset. Make sure you allow time for a break to gather their thoughts.

The employer should not get angry in return. Ensure that your conversation stays calm, do not force the employee to keep quiet, and above all, allow freedom of expression.

In a situation where the employee has not provided any reason for the allegations you still need to consider all the facts. Take time after the meeting – jumping straight to the conclusion of dismissal may indicate a predetermined outcome and therefore you may not be seen to be procedural fair. FW may deem the dismissal to be a fair reason but that the process was harsh – there would therefore likely be some form of payment to the employee for this.

If you have decided to go to dismissal, we suggest a final “show cause’ letter and meeting. This tells the employee that you are considering terminating their employment and gives them the last chance to tell you why you should reconsider. If nothing new, then you would be safe to dismiss.  The dismissal should be issued in writing. After this, take care of issues relating to settlements of entitlements and other relating issues.

Post meeting

An employer should co-ordinate the leaving process of the dismissed employee. Ensure to treat the dismissed employee with respect throughout the ordeal. The employee should be allowed unrestricted access to his personal items and also goodbyes from all other employees. If the employer wants to pay in lieu of notice the employee can leave that day.  This is often the best solution as rightly so the employee will be upset, and the business needs to move on and go into damage control to clear up what’s left behind.

Employers should treat employees with social, physical and legal respect during the dismissal process. Fall short of this and the law will make you pay.

The above is a very generalised process and does not take into account any mitigating circumstances nor does it take into account any specifics of a situation. We therefore highly recommend if you are looking at terminating an employee you contact us BEFORE you say or do anything.

Here is something to note – if you do get a F3 did you know “The employer can object to an unfair dismissal application on a number of jurisdictional grounds. A jurisdictional objection is not simply that the employer thinks the dismissal was fair. For example, the employer may object because the employer does not think the employee is eligible to make the application.”

How To Resolve An Unfair Dismissal Claim

How To Resolve An Unfair Dismissal Claim

Unfair dismissal does not play well on a company’s finances and environment. It could potentially drain your time, cost you your reputation, and ultimately affect your profit if you end up having to pay out an employee.

The best bet you have as an employer is taking advice at a very early stage. There are few ways to reduce the success rate of a successful unfair dismissal claim by an aggrieved employee. Also, in the case of a successful claim, there are few ways to minimize the risk that you are going to be facing as an employer.

The first of these ways is through observance of all the legal processes and obligation as an employer. The Fair Work Act guides the dismissal of an employee – as a small business you can follow the Small Business Fair Dismissal Code.

A break down of the code for dismissal, other than summary dismissal is:

The small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

As an employer, and taking on board the above, when an employee is not performing up to expectation, the first thing to do is have a discussion with them and let them know that the performance or conduct is not acceptable. This can first be done as a counselling session. If the performance or conduct does not improve then you can have a formal disciplinary meeting and dependent on the responses a warning can be issued. The warning should contain details about the current employee practice and what is expected of such an employee.

The warning should succinctly address all underlying behaviors and recommend improvement. You can also proceed to produce a Performance Improvement Plan (PIP) which sets out everything clearly and the time-frames as well as acting as a framework for regular communication. When this is done, you must give that employee time to respond positively.

In the case of fraud, theft or bribery, an employer does not need to provide any warning and can (dependent on each individual circumstances) proceed to summary dismissal.

If you are faced with an unfair dismissal claim, you will have a meeting set up with conciliation meeting. Conciliation is a voluntary process to help an employer and employee resolve an unfair dismissal dispute. It is an informal method of resolving the claim that is generally conducted by telephone and can avoid the need for a formal conference or hearing.

If you choose not to have a conciliation, or you have a conciliation that fails to produce a settlement, the case will automatically go to a hearing or conference unless the employee formally discontinues their application. Fresh HR Insights recommends that you do attend a conciliation meeting and we can support you in this. We can act as your representative.

The potential cost of a successfully played unfair dismissal claim on the part of the employee can be crippling on all fronts. So, therefore, it is advisable to come to a reasonable agreement of settlement and where you can stay outside the courtroom. Although you could win in a courtroom since the chance of winning is 50/50, appearing before a courtroom could end up very costly not just in money but also time and the stress on you personally as a business owner. Better to avoid it entirely.

You need to note – You are under no obligation to agree to a settlement if you don’t want to at the conciliation meeting. It is your right to maintain your position and proceed to a hearing. But it is in your interests to try conciliation as they are often successful, with 4 out of 5 matters settling at this stage. A settlement can avoid the time delays and costs of having a formal hearing.

The best way however to avoid all this all together is to understand the legalities involved. Legalities that you can’t understand if you don’t ask for help. Your call…

 How is a conciliation conducted

Conciliation are usually held by telephone. The conciliator will be in their office at the Commission. The employer and employee can be in any location, provided it is quiet and they will not be disturbed. A conciliation can take around 90 minutes to complete.

The conciliator will call the parties and introduce them into a telephone conference call. Any representatives for either side will also be called if they are not in the room with the employee or employer. This can mean there are as many as 5 different people on the conference call.

The style of each conciliator may vary but, in general, a conciliation will include the following steps:

  • the conciliator explains their role and the manner in which the conciliation is to be run
  • each side briefly outlines their story including what happened, any relevant facts and what they want
  • the conciliator may allow or ask questions
  • the circumstances, and any issues arising, are discussed – the conciliator may talk separately to the parties. While this is happening the party not in the private discussion will be disconnected and called back later. In these private discussions each side is given the opportunity to speak to the conciliator about their situation. The conciliator will discuss with them proposals that might lead to a resolution. The conciliation can continue in private discussions for some time, as the conciliator relays proposals and counter-proposals from one side to the other. This process may help the parties reach an agreed settlement.
  • the conciliator helps the parties to reach agreement by identifying common ground, suggesting possible options and sometimes by making recommendations and helping the parties draft an agreement in writing.

After the private discussions all the parties come back together on a joint conference call. If an agreed settlement has been reached the conciliator will confirm the details with the parties. But if no agreement has been reached the conciliator will explain the next steps in the process, which is going to a formal conference or hearing.

Counting the Cost of Unfair Dismissal

Counting the Cost of Unfair Dismissal

When we think of the issue of unfair dismissal, there will always be disputes about who actually bears the ultimate cost, the employer or the employee. While some would say it is the employee, other schools of thought seem to think it is the employer. But who does bear the cost? A sneak peek at what unfair dismissal is.

According to labor law, an unfair dismissal is an act of employment termination, made without good reason or contrary to the specific legislation. Put in another way, when there is a good reason for dismissing an employee, but the dismissal happens through the wrong procedure.

Now when an aggrieved employee wants to raise a claim of unfair dismissal, they have to lodge an unfair dismissal application to the commission responsible for handling such matters in the country.

For example, the Fair Work Commission is responsible for such in Australia. When this procedure is completed, the commission urgently sends a due copy of the application to the employer who then reciprocates and send a response to the commission and the ex-employee. More often than not, the commission tries to settle the matter through agreements, but where this is not possible; it progresses to a legal hearing.

To examine which party bears the ultimate cost of unfair dismissal, it is important we examine it from different perspectives:

Financially, in most cases, for an aggrieved ex-employee to lodge an unfair dismissal application against a former employer, they will have to pay a particular fee, before they can start the process. This is currently $71.90This fee can be waived in cases of serious financial hardship.

Thereafter, the cost reduces considerably on the side of the employee and in some cases, the fee may even be refunded if the application is not accepted. For the employer, especially employers or large companies who are being accused of unfair dismissal, they will bear the cost of hiring a Human Resource/ Employment Relations Consultant or a lawyer to ascertain if truly there’s legal backing for unfair dismissal.

Also, in a case where the employee was truly unfairly dismissed, the compensation paid by the employer is usually hefty, when compared to the compensation paid by the ex-employee, if any at all when the claim is unsubstantiated. While the Fair Work Act in Australia allows costs payment if either of the party acted unworthily or without genuine cause. It should also be noticed that the same act states that all parties bear their own cost.

Note; Compensation is capped at 26 weeks’ pay and the total amount of compensation able to be awarded is half of the high-income threshold amount that applies immediately before the dismissal. This is currently $71,000 as the high-income threshold until 30 June 2018 is $142,000

Additionally, either parties can be detrimentally affected by an unfair dismissal application. Look at it this way, it can affect the employee’s ability to get another reasonable job or affect the company’s productive. If a person starts an unfair dismissal application against their former employer and after the whole proceedings, they are found to have acted inappropriately or without cause, they might find it considerably difficult to get another good job as acts like this are closely monitored by other employers.

For an employer found guilty of unfair dismissal, not only would they lose customers trust, but there will also be internal employee uproar. The public sentiment would be in support of the unfairly dismissed employee, and the image of the company will be damaged. Before long, stakeholders begin to express their dissent and the company has to deal with it.

Before embarking on dismissing an employee unfairly, it is noteworthy employers come to grasp the cost that they would be paying. Whether the dismissal was intentional or not, as far as it is unfair, employers end up bearing the greater cost. No matter how you look at it, it ultimately affects the profit gearing and perceived image.

The team at Fresh HR Insights fully understand and appreciate the costs involved with terminating an employee either because of their conduct or their capability. Which ever it is we strongly advise to tread carefully and follow a process. If you need to terminate give us a call on 0452 471 960 or alternatively book a time to chat through our booking system.

Some facts: More than 90% of unfair dismissal claims in 2017 were resolved before they reached a hearing involving a Fair Work Commissioner, but experts say disputes can still cost businesses significant time and money even if they never make it to the formal hearing stage.

The Fair Work Commission’s annual report in 2016-17 revealed 14,587 claims were made for unfair dismissal against Australian businesses in the 12 months leading up to June 30. On average, this is 280 claims a week.

If you want to find out more about the Disciplinary process, we have developed an eBook that will guide you through the process step by step and provide tips and templates. For the month of March 2019 this eBook is on sale. 

In House Training

Managing Separation and Termination training – Duration 3-hours for up to 10 people

Learning Outcomes:

  • Understanding Legislation
  • Knowledge of what Fair Work look for in an unfair dismissal claim
  • Procedural Fairness awareness
  • Skills and Knowledge for Disciplinary Action
  • The role of Managers and Supervisors
What to do when you are thinking about employing

What to do when you are thinking about employing

Employers everywhere will always be interested in the hunt for bright and young talent. For an undisputed fact, this hunt is such that will span throughout the year 2019. With the year off to a bright start, small business human resources and SME business support is ever looking for ways to create the perfect and necessary picture to attract the right kind of employee. With the waves of litigation and lawsuits hitting start-up businesses on the Gold coast and the whole of Australia, it is important that HR gets it right when dealing with employing.

First of all, employers seeking to recruit in Australia should familiarize themselves with the Fair Work Ombudsman and Fair Work Australia so that they make sure all legal requirements are met. These bodies are responsible for keeping the atmosphere at the workplace at a non-toxic level.

The Fair Work Ombudsman is an independent statutory office. Their jurisdiction is set out in the Fair Work Act 2009 and services are free to all workers and employers in Australia.

Their main role is to:

  • promote harmonious, productive and cooperative workplace relations
  • ensure compliance with Australian workplace laws
  • monitor certain 457 and 482 subclass visa arrangements.

The Fair Work information Information Statement must be made available to each employee. The National Employment Standards provided under the Fair Work Act 2009 (Cth) requires an employer to provide each new employee with a copy of the FWIS before, or as soon as practicable after, the employee commences employment.

Secondly, it is important to determine the forms of appointment. Human resources in Australia, Gold coast, and Brisbane should be diligent to effectively communicate each form of employment that is available. This procedure allows an employer to recruit the right employee for a corresponding need. This step is necessary to prevent underhand in the appointment process. When all the standards, forms, and entitlement that comes with each job is communicated, the employee’s confidence in HR is set at an all-time high level.

What type of employees do you need?

The type of employees that you choose is a very important decision and you need to be aware of the legal ramifications relating to each employee type and manage them accordingly and appropriately. Follow ‘best practice’ to reduce the costs, minimise legal exposure and develop an engaged workforce.

Types of employees

  • Permanent full-time
  • Permanent part-time
  • Casual employment
  • Non-employees such as independent contractor
  • Labour hire workers

Your business has its own set of unique operational requirements and what meets your needs won’t necessarily meet the needs of another.

When the forms and types of appointment are communicated, an employer can then proceed to design a job description. This is that procedure that differentiates the “desirable” from the “essential.” It involves a clear-cut description of skill that is needed for each job.

It is important for employers to make a mental note of the fact that, job descriptions when it is not properly constructed often involve a hint of discriminatory language. To steer clear of this pitfall, avoid references to age, sex, and race. For example, ensure direct coaching for women in business as much as men have it.

Furthermore, it is important to decide on the application process. For consulting purpose, it is advisable that the process is simplified so as to take care of people with disabilities and cultural background. Speaking of simplification, it is advisable an online portal is implemented for easy access.

Another important thing to do is to design an impressive employee agreement form. This should adequately cover their occupational health, compensation system, safety system, and remuneration. Although they are entitled to them by law, such as the Australia health and safety requirement, workers compensation insurance etc. Stressing that you care about them will be appreciated.

Finally, although it may seem superficial, it is never too early to plan for advertisements. Remember to capture reasons why they should work with you and put little emphasis on their race, age and sex.

Most importantly, if you are unsure of the process to follow, need some help, support or advice then you can contact the team at Fresh HR Insights Pty Ltd.

A simple solution is to set the foundations from the outset and ensure you have all expectations set out can save you a whole heap of bother down the line. Some small businesses shoot from the hip and make rash decisions, but the team at Fresh HR Insights spend more time on preventive management, like getting your car serviced, so employee’s are behaving in a way that prevent problems happening in the first place. We are super passionate about getting this right that we have created and are GIVING you all the New Starter documents to make sure you set off on the right track when you recruit in our New Starter Kit.

What do you get?

  • New Team Member Starter Pack
  • Induction/ orientation checklist
  • Taking on a New Employee Checklist
  • Record Keeping Checklist (Fair Work Act)
  • Fair Work Statement
  • TFN Declaration
  • Superannuation Standard Choice Form

 

Employee handbooks ‚ The benefits are HUGE

An employee handbook compiling your work workplace rules is a great way to communicate work policies to employees. However, it’s extremely important to follow certain guidelines when creating a handbook in order to avoid inadvertently creating an employment contract. Employee handbooks are basically manuals containing an employer’s work rules and policies which can be used to communicate these rules and policies to employees.

Manuals can also contain other information that is useful to the employee, such as the business’s history, its goals, and its commitment to customer service.

Should your business have an employee handbook???????

For a small business in particular, this question is hard to answer. Whether to have a handbook should depend largely on the size of your business. If you have only a handful of employees, the time it would take to assemble a handbook probably will put you off. Fresh HR Insights have the solution – handbooks customised for your small business needs.

Why do you need a handbook I hear you ask???????????

Handbooks can pass on valuable information to your employees, such as:

  • What you expect of them and what they can expect of you
  • What your business’s service policy to customers is
  • What place your business has in the community and the industry
  • What makes your business a good place to work

If you’re undecided about whether to invest in a handbook, consider some of the other uses for a handbook in addition to communicating important information to employees.

The handbook can serve a number of purposes:

  • A motivator. A handbook can give employees a sense of being a part of something larger. If your handbook includes information about the business’s history and goals, it can provide a positive motivation for keeping employees excited about their jobs and involved in the company’s success.
  • A reference. With a handbook, everyone knows the rules of your workplace. When an employee breaks a rule, you can refer to the handbook. It helps make enforcement and discipline easier.
  • Your shield from charges of discrimination or unfair treatment. If discrimination or FWA claims are brought against your business, your handbook can provide persuasive evidence that you had clear, reasonable rules against certain conduct which were communicated to employees and fairly enforced.

At Fresh HR Insights we have employee handbooks for small business. For further information or for a quote for your business please contact Paulette on 0452471960 or paulette@freshhrinsights.com.au.