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.”

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