Every business owner or executive will eventually come to the situation where an employee’s contract needs to be terminated via dismissal. If it is a resignation you are facing, then use our FREE helpful resignation checklist instead.
Termination should not be rushed, and the first step is to minimise what you say to the employee initially. Immediately consult with your H.R. department, in-house or subcontracted professional. In the absence of these, consult our Ending Employment Fact Sheet, which covers all you need to know when it comes to employee termination procedures, be it dismissal or resignation.
Once you have ascertained that the dismissal is legal and without risk of unfair dismissal, adverse action or general protections claims, you will move onto preparing for related meetings. Take these steps to avoid hostility and thus avoid legal claims after dismissal. Be mindful NOT to make any predetermined outcomes and make a decision before the employee has an opportunity to respond. This has the risk of any dismissal being procedurally unfair and harsh.
The following are a set of example steps to take in preparation for the dismissal meeting. However your H.R. manager/service provider’s advice supersedes this:
a) Ascertain if the employee wants a support person present. A support person is an entitlement – a support person is not there to act as an advocate of the employee but support the employee. You might also like to have a witness present but be careful that this is not perceived as a ‘gang up’ on the dismissed employee.
b) Choose a location for the meeting which is disruption-free and privacy-promoting.
c) Review meeting documentation, including the employee’s personnel file and the entitlements due to the employee.
d) Prepare what you want to say, especially the main issues, to avoid omissions and digressions. Never make a decision in a meeting as this may indicate a pre-determined outcome. You need to give the employee a fair chance to respond.
Leading a Show Cause Meeting
The following are example steps to help a smooth meeting flow, subject to your H.R. manager/service provider:
a) Immediately state the intent to dismiss the employee – BUT only do this if you have either followed a disciplinary process and they have not provided a reasonable explanation and this is their chance – this is a show cause meeting .
b) Clarify the decision with a reasonable
c) Be calm and avoid arguing at all times.
d) Allow the employee to explain why the dismissal should not occur and consider the points they have raised. Allow a little venting as well without interrupting.
e) In the absence of mitigating circumstances from the employee, suggest a break to decide on dismissal. There is always the chance an employee brings new information that you were unaware of that you need to consider.
f) If there are no new reasons not to terminate – reconvene and advise the employee and let them know you will follow up with the issuing of the dismissal in writing. Check the email and/or postal address you have on file.
f) After confirming the termination of employment, address administration tasks such as final pay, etc. Ensure that all relevant employee entitlements are made.
5 Things You Should Never Say When Dismissing An Employee
Here are some guidelines on well-meaning sentences you should avoid during the dismissal process. They may be perceived as insensitive and cause agitation:
1) ”l am sure you will find another job soon.”
2) “The dismissal was not my decision.”
3) “I feel bad” or “This is hard for me too.”
4) “You are not as good as your colleague.”
5) “It’s probably for the best.”
All commentary must be quantifiable, objective, focus on the facts, and lack personal opinions.
What To Do After The Meeting
Experience shows a dismissed employee should leave on the dismissal day. The dismissed employee and other staff will be emotional and unproductive.
The following post-meeting steps are proposed:
a) Cancel computer systems and premises access.
b) Retrieve company assets from the employee.
c) Allow personal item retrieval by the accompanied employee.
d) Provide transportation home if required.
e) Pay across all entitlements promptly.
f) Document the termination meeting’s full minutes immediately and keep it in the employee’s file for 7 years.
g) Inform the staff and clients that the employee no longer works for the business – no further details. But be careful of the wording as you do not want defamation claims.
“How an employer’s email to 35 parents led to an order to pay $237,970” The trial judge held that the employer had acted maliciously by sending the email to 35 parents, who had no need to know the information in the email about why the worker was dismissed. However, this was overturned on appeal but it does not give way for an employer to say what they like.
- Bowden v KSMC Holdings Pty Ltd t//a Hubba Bubba Childcare  NSWDC 98
- KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare v Bowden  NSWSC 28 – 3 March 202
- h) Escort aggressively upset or hostile employees off the premises but only as a last resort. Avoid heavy-handedness at all costs!
Be very careful. If you are not au fait with employment legislation, you could be exposed to very expensive legal claims. Professional advice or involvement is always the best option in these circumstances.