We often hear our clients say “Help me get this person out of my business!” We like to hear this, as we can provide the correct advice on how to either safely terminate an employee, or manage them to improve their performance so they can provide value to the business.
Problems arise when employers don’t make this call and instead terminate an employee’s employment without a second thought to the process in which they do so. In these situations, there is a huge risk of unfair dismissal, or even general protections, claims being made against the employer.
Not giving employees a reason for dismissal
Even if there is a justified reason to dismiss an employee, it is important that you give them a clear reason and opportunity to respond prior to the termination. In the case of Leigh v Nestle Australia Ltd FWA 4744, the employee was accused of serious misconduct resulting in the employee being convicted of criminal offences. Whilst there was a clear reason to immediately dismiss the employee, the employer failed to notify the employee of that reason. As a result, it was labelled as an unfair dismissal and compensation was awarded.
Not allowing for a proper process
Employers often have their hearts set on removing an employee from their business, regardless of what happens within the process. In one case, Josh v Panasonic Australia Pty Ltd ]2-11] FWA 2946, it was found that throughout the disciplinary meetings, the employer had pre-recorded warnings and scripts, indicating that the employee would be terminated eventually, regardless of what happened in the meetings. It was found these meetings were simply a ‘ mechanical process’ and didn’t give the employee a real chance to respond to warnings and therefore the termination was unfair.
Not being consistent with warnings
Issues can arise when employers don’t consistently apply the same warnings to the same behaviour or action from their employees. If two employees can do the same thing, yet only one of them is given a warning it creates inconsistency and lead to unfair dismissal claims in the case of terminations. In one case (Andersen v Acquista Investments P/L and Veolia Environment Services (Australia) Pty Ltd  FWA 4560), an employee was dismissed for arriving to work late and failing to obey a no-smoking directive. It was found that other employees and management smoked in the office and that warnings for late attendance were inconsistently applied. As a result, it was help that the termination was unfair.
No issuing formal warnings
Many employers prefer to operate more informally, and this can include the way they do their performance management. This can sometimes create confusion between employer and employee, especially as the employee may not recognise the seriousness of the warnings. One case that highlights this issue is Dean v Sybecca Pty Ltd  FWA 8462, where the employee was dismissed for performance and conduct issues, yet it was found the employee was never formally warned that they could be terminated. It was found that, despite the employer being a small business
Refusing a support request
When dismissing an employee and going through any consultation process it is important to let the employee know of the right to a support person and allow them to choose their own one. In one case, Dewson v Boom Logistics Ltd FWA 9027, an employee was dismissed for serious misconduct, which was a genuine reason for dismissal. However, in the consultation process, the employee requested a support person from a union, yet wasn’t allowed that specific one. It was then found that dismissal was unfair.
Australian employment laws are complex to say the least. ER Strategies specialises in assisting employers manage their employees in a compliant manner. If you need assistance with a trouble employee, give us a call on 1300 55 66 37, or click here.