Deciding on letting go of an employer is never an easy task. This is a fact that many business owners have come to terms with. Regrettably, some had to learn the hard way. There is nothing bad in letting go or dismissing an employee. What would be considered wrong is dismissing the employee in a “not so legal way“ I mean, if an employee is always absent, does not do his work well and is causing you to lose productivity, then he should walk the plank.
But hold your horses, you cannot dismiss employees just as you feel unless you want to be plagued with the problems and costs that come with settling unfair dismissal claims.
To prepare yourself and your business from unfair dismissal claims, observe the following procedures before dismissal:
- Clear communication: the importance of communication in a company cannot be overemphasized. Communication is instrumental in preventing feelings of hostility, humiliation, prejudice, and favoritism. Draw out or review policies and management systems that determine the disciplinary procedures. Apart from engaging your employees, it depicts a transparent atmosphere in the organization. The disciplinary procedures should be communicated to the employees and if possible, presented in a handbook.
- Employee handbook: This will be one of your weapons when claims arise. The handbook should be designed to include internal policies and legislative framework within your company. It should be comprehensive and at the same time, easy to use. It should be structured to give room for implementing organizational changes. You can easily fall back on this when (or if) a claim does come up.
- Key performance indicator (KPI) and staff performance: A way to check an employee’s performance is to set KPIs as this will aid to avoid precarious situations in the future. Your aim should be to create one if you have not and implement it. Employees can use this to calculate their performance and determine if they are falling short. It helps to maintain an optimistic approach to work.
- Keep records: In any employee performance related discussion, ensure that there is an independent and impartial witness who can give an unbiased third-party opinion on the subject of the discussion if the need ever arises. Additionally, interactions with employees should be recorded. The documentation can be used to update employee human resource files and correlate it with their warnings, disciplinary actions and performance. Although keeping records help you to comply with the legal ACT, its usefulness comes to play in the face of an unfair dismissal claim by an employee. “If it isn’t written down it didn’t happen”
- Investigation: Instead of assuming, get your facts right before dismissing an employee. If needed, it can be conducted by an external investigator. Investigation ensures that your grounds for dismissing an employee is not only legal it will also be fair Just and reasonable.
- Give your employee an opportunity to prove you wrong. An explanation does not have to be by words. It could be by actions. Before deciding on dismissing an employee, allow him time to gather his thoughts right and watch for performance improvements. If no feedback is provided after reacting, then you can proceed with the dismissal.
To stand a chance against successful fair work claims, it is crucial to get these procedures right. Even if a dismissal is deemed to be fair it can still be “harsh” or procedurally unfair.
What is an unfair dismissal?
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
The Fair Work Commission may consider an employee has been unfairly dismissed if:
- the person was dismissed
- the dismissal was harsh, unjust or unreasonable
- the dismissal was not a case of genuine redundancy
- the employee worked for a small business and the dismissal was not done according to the Small Business Fair Dismissal Code.
What is harsh, unjust or unreasonable?
The Fair Work Commission will decide if a dismissal is harsh, unjust or unreasonable, and they consider all of the following circumstances:
- was there was 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.
Fresh HR Insights are experts in the dismissal process.
If you have any questions about the reason for dismissal or how to go about dismissing an employee for either conduct or capability, then call us on 0452 471 960 or book a FREE 30-minute general consultation HERE
We also have available fact sheets and eBooks that help you in the Dismissal process. We have listed these below – Click on them to find out more.
- Disciplinary Process eBook
- Ending Employment Fact Sheet
- Effective Communication
- Policies and Procedures – Do I need them and if so which ones
- Performance Management
- Small Business HR Rescue Kit
- Base Employee Handbook
- Small Business New Starter Kit
Did you know that Fresh HR Insights also offer a range of Workshops for Small business – find out what we do HERE – If you cannot see what you are after then give us a call on 0452471960 and discuss your needs.