The old saying that that one bad apple can ruin the barrel is incredibly true. Dismissing an employee may seem daunting, but the effect of one disruptive person on an organisation can be immense if left untreated.
It’s a known fact that some businesses are reluctant to deal with performance issues, because they fear the potential consequences of a costly unfair dismissal case.
If you are an employer and looking to dismiss an employee, let’s look at a number of basic steps that should form part of a sound and fair process, based on Fair Work Act provisions.
- Establish a valid reason
In all cases you must give your employee a valid reason why he or she is at risk of being dismissed. This must be a valid reason based on the employee’s conduct or capacity to do the job.
- Explain the issue
Arrange a meeting and explain to your employee why their performance and/or conduct is unsatisfactory and that he or she risks being dismissed if there is no improvement.
It is very important that you provide your employee with an opportunity to respond to the warning and a chance to rectify the problem within a reasonable timeframe. Rectifying the problem may involve additional training, coaching, feedback and monitoring.
- Issue Warnings
The often quoted ‘Three warnings before dismissal’ is not a legal requirement. The Fair Work Act does not set out any minimum number of warnings that must be issued in order for a dismissal to be considered fair. Instead, the number of warnings given to an employee will depend on the facts and circumstances of each case. As a general rule, you should consider giving at least two warnings before dismissal. One exception to this rule is if the employee has committed gross or serious misconduct. In this case, you don’t need to give any warnings (or notice period).
Ensure to keep copies of all correspondence regarding the matter, including warning letters, improvement-plans, etc.
- Dismissal
In discussions with an employee in circumstances where dismissal is possible, you must offer the employee the opportunity to have a support person present at the meeting.
At this stage it is also important that you genuinely consider your employee’s response. That’s why you do not arrive with a pre-prepared letter of termination to such meeting.
If there is no satisfactory improvement and if you can demonstrate that your employee was aware that their conduct or performance was unacceptable and have provided a reasonable opportunity to correct or improve, you should be able to dismiss the employee without significant risk of adverse consequences.
Conclusion
Your processes must be fair and reasonable in the circumstances and support decisions made to terminate. Failure to follow and/or document this process can come at a high price.
Have you recently reviewed your policies and procedures around performance management and dismissal?
If not, or if you require specific advice on this important area of management, please do not hesitate to contact us for a free consultation.