When we look at dismissal it is fair to say that employees now enjoy a far greater range of rights than they did under the former Work Choices. In particular through the broad access to unfair dismissal protections, general protections, and redundancy pay. Employers are exposed to claims on a greater level than ever before and even when there is a chance they won’t be successful, employees are being more and more opportunists.
The solution: Employers need to go about the termination in the best way possible and avoid any problems – be fair, and consistent, give an employee an opportunity to respond, have a support person, and not make a predetermined outcome.
Since also it is not an easy decision to make, it may cause hard feelings and other grudges between employers and employees.
Here is a list of things you must avoid when firing an employee:
Things To Avoid During Employee Termination
If you are on the verge of firing an employee, here are some things that you must avoid at all costs:
Electronic Employee Termination
We know just how easy it is to send your employee an email saying that the company no longer needs their services. However, this is the worst possible way to fire an employee. Firing an employee through impersonal methods is not fair to them. After working with the company for their entire tenure, they deserve to be let go more dignifiedly. It is a basic courtesy to fire your employees in a face-to-face meeting.
This may be the most difficult thing for you to do, but it is very important for your employee’s morale. When you have finally decided to fire an employee, call them in for a meeting and take that opportunity to break the news. This way, you can explain the reasons that led to this employee’s termination, and the employee will have some sort of closure that can help them in their future career.
Losing a job out of nowhere can impact your employee greatly, and it is entirely unfair. Do not fire your employees and take a steady approach instead. Everyone deserves a chance to rectify their mistakes and improve. Therefore, you shouldn’t act without a fair warning to your employee. You can start with feedback and tell your employee all the mistakes they are making and how it affects their quality of work.
Using this feedback, your employees will know exactly what they need to fix and how they can do it. Even if they do not have the skills to fix their mistakes, you can give them the necessary coaching they need to do it.
It is a good idea to document every step so that you can cross-check everything and, based on the results, decide whether or not you wish to fire your employee. Once you have exhausted all your options, you can give your employee a final warning and then fire them so they cannot claim that the termination was unfair. It may still be a surprise for your employee, but your job here is complete.
Firing Without A Witness
This may not seem like a very important point, but if you fire your employee without a witness, you may be looking forward to a lawsuit. This is a very widespread concern as many ex-employees have sued their employers for unlawful employee termination. They typically hire lawyers who find loopholes in the firing process and capitalize on that. It is best to have a witness when you fire employees to avoid such a situation. You can ask another employee to sit with you through the firing procedure.
If you do not want to include your employees in the firing of another employee, then you can include any of the human resource staff. This can help you avoid lawsuits as it will be no longer just your word against the employee.
When firing your employee, you need to be as clear as possible. Vague statements may not get the job done as your employee may not pick up on the fact that you are firing them. Instead of misleading your employees with gauge statements, it is best to be direct and use clear language that is easy to understand for your employees.
Unclear statements may put you in a more awkward position, so you must avoid any pleasantries that may mislead your employees.
Extended Firing Procedure
There is no use in extending the firing procedure. It is best to get it over with as soon as possible. You can go over the reasons why you decide to fire the employee, but you cannot go over the same thing over and over again. The reinforcement of how your employee could not meet the company standards will only make it harsh for your employees. It is best to finish the firing procedure as soon as possible to maintain the dignity of your employees.
However, it is a good idea for you to wish your employee well and tell them that you hope for them to get a better job that fits their skill set in the best ways possible.
Employee Access To Company Property
When firing an employee, you need to understand that it can be a risk to your company. Your employee may have sensitive company information that should stay in good hands. When you fire an employee, you need to ensure that they hand over every piece of company property before they walk out the door. It can be difficult to ask your employee to hand over everything, but it is important to do so.
When looking at any dismissal the Fair Work Commission will look to see if the dismissal is harsh, unjust, or unreasonable. But what does that mean?
What the Fair Work Commission considers are all of the following circumstances:
- was there a valid reason for the dismissal related to the employee’s capacity or conduct
- was the employee notified of that reason and given an opportunity to respond
- if the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable
- whether the employee had been previously warned that their performance was unsatisfactory
- If the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee, and
- any other matters that the Fair Work Commission considers relevant.
There is also Unlawful Dismissal
What is an unlawful termination? Unlawful termination is when an employee is dismissed by their employer for one or more of the following reasons:
- a person’s race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)
- temporary absence from work because of illness or injury
- trade union membership or non-membership or participation in industrial activities
- being absent from work during maternity leave or other parental leave
- temporary absence from work to engage in a voluntary emergency management activity
- exercising or planning to exercise a workplace right by making a complaint or inquiry in relation to your employment or participating in proceedings against an employer.
Generally, employees are protected from unlawful termination under the General Protections provisions of the Fair Work Act 2009. However, all employees are protected from unlawful termination.
Do not take a risk – give the team at Fresh HR Insights a call or drop us an email. We are here to help you.