Employers need to ensure that they comply with the strict rules laid down in legislation when dismissing or terminating employees.
We’ve put together this brief guide for terminating employees mainly for issues to do with Social Media misconduct although the principles apply across many employment issues.
Help to complete the dismissal / warning forms.
When terminating or dismissing an employee, you need to make sure you comply with legislation, namely the Fair Work Act, 2009 and the National Employment Standards.
The National Employment Standards set out minimum notice periods that must be given when terminating an employee, as well as payment entitlements on termination. This will vary depending on factors such as:-
- The type of employee being terminated (eg. you don’t need to provide notice to a casual worker);
- The reason the employee is being terminated (eg. you don’t need to give notice where the termination is due to serious misconduct such as theft, fraud or violence); and
- The length of time the employee has been employed.
An employee’s award, or employment contract, cannot exclude or limit the entitlements on termination.
A dismissal must not be harsh, unjust, or unreasonable
Dismissing an employee for their conduct, work performance or capacity must not be harsh, unjust or unreasonable. In particular, you should:-
- Give the employee warning about his or her unsatisfactory conduct or work performance before dismissal, and notice that unless improved the employee may be dismissed;
- Allow the employee an appropriate period to improve his or her performance or conduct before dismissal;
- Give the employee notice of the reasons for dismissal and an opportunity to respond before dismissal;
- Allow the employee to have a support person present during discussions if requested.
You should keep records of all correspondence and detailed file notes on discussions relating to staff dismissals and terminations.
Correct notice periods, redundancy payments, etc
We recommend you visit the Fair Work Ombudsman’s website here to calculate the correct notice periods and redundancy payments for filling out this form.
Termination Tools and Resources – Fair Work Ombudsman
https://www.fairwork.gov.au/ending-employment
Notice of Termination and Redundancy Pay
https://www.fairwork.gov.au/ending-employment/redundancy
When can a business legally dismiss an employee?
