Sometimes employers ring us to say – “Help me get this person out of my business!”
However, an employee dismissal can backfire spectacularly if not done correctly. As much as you might detest these kinds of employees, don’t make one of these common mistakes when dismissing them –
1. Not giving them a reason for their dismissal
This is probably the most common mistake when dismissing employees. Not giving a valid reason for dismissal increases their determination to get back at you – which can fuel the employee taking an ‘Adverse Action’ claim against you where you have to disprove they were dismissed for some other prescribed reason. To prevent this, take the time to specifically outline WHY they are being let go.
2. Not following dismissal procedures
This can include not giving the employee a chance to explain their side of the story or not offering them a witness or support person in the lead up to their dismissal.
3. Not giving warnings
Not giving employees warnings of their negative behaviour or conduct before being dismissed can be disastrous. This especially applies if the employee has been with you for a long period of time and you dismiss them without any prior warnings and you’ll need to provide a lot of evidence for your decision to terminate them summarily.
4. No record of events
Keep a documented chronology of events e.g. specific details of any informal and formal warnings or performance management strategies. This makes it a lot easier to defend yourself against any accusations or action taken against you.
5. No performance management
This is an often overlooked strategy and a potential solution to being forced to dismiss a poor performing employee – by making them a good performing employee. Try putting the employee on a mutually agreed performance management scheme, which gives the employee clear performance targets and timelines they need to reach. If the employee does not perform to the agreed standards, you are well within your rights to dismiss them, assuming the standards are sufficiently supportable.
6. Giving a discriminatory reason for dismissal
Check out Australia’s Anti-Discrimination laws. If you dismiss an employee on the basis of age, sex, religion, ethnicity, disability and other similar reasons, you are at significant risk of a Discrimination, Adverse Action or General Protections claim being taken against you.
7. The employee was injured at work
There are special laws protecting injured workers from early termination, especially if it occurred within 6-12 months of the injury (different states have different time periods). In addition, you can have huge amounts added to your WC premiums.
8. Faking a redundancy
An employee can overcome exceptions to being able to take an unfair dismissal case, if they can convince the FWC their redundancy wasn’t genuine. For example, making their role redundant and then replacing them with someone else doing the same sort of work they were.
They can also take an unfair dismissal case if you have not have followed the award or EBA consultation provisions relating to the redundancy, or it was open to you to redeploy them into another role within your business (or a related business).
9. Not getting independent advice
Never underestimate the value of getting additional advice. Dismissals can be hard to manage and can be very costly if done incorrectly. Take the time to get advice from someone who knows this area.
Bonus Case Study
In the case of Camilleri v IBM Australia Limited  FWC 5894, Mr. Camilleri was dismissed after it was found he had made 141 improper expense claims on a company credit card. The FWC found this dismissal to be unfair despite the actions of Mr. Camilleri. This was due to the fact that Mr. Camilleri had worked at IBM for 17 years and had offered to repay what was owed to the business. Furthermore, there was also found to be an excessive period of delay between Mr. Camilleri’s actions and the dismissal itself. Given these circumstances, the dismissal was deemed to be unfair and the employee was awarded 50% of their lost renumeration.