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As a workplace relations adviser, I regularly assist a number of employers as they undergo an audit by the Fair Work Ombudsman (FWO). Many ...
The ending of a person’s employment can be due to several factors, and can be conducted in a number of ways however, there are strict guidelines on the correct process for dismissing an employee depending on the type of termination taking place.
Sound reasoning to the dismissal is vital for employers to ensure a minimal risk of unfair dismissal claims from former employees. Amongst the complex laws in this area in Australia are four key areas in which the release of an employee can occur with proper reasoning:
Failing to base a termination on the above areas could result in an unfair dismissal claim. However, there are some exceptions including whether an employee has been involved in serious, repeated or gross misconduct.
Understanding the difference between resignation and termination is important when determining the steps necessary as an employee heads towards the end of their employment. A resignation will be when an employee instigates the end of their employment, whereas termination is where the employer decides the employee is no longer required.
A key difference between resignation and termination is the required amount of notice. Generally outlined in the employment contract, an employee will be required to give a certain amount of notice (often one to four weeks) of their intent to resign and an employer will be required to give the same amount of notice when dismissing an employee.
Any clauses in an employment contract regarding notice become a complex topic when the ending of employment is not an agreed or mutually acceptable outcome. For example, where an employee has been terminated and their remaining in the workplace will be uncomfortable for other employees it may be better to pay out the notice period. This applies only in cases where employers decide the notice period will be better if it is not worked.
Dismissing an employee, or their resignation, can become even more difficult where they are a key worker. With this being someone that has commercially sensitive information or is important to the workplace, there are ways that the end of this person’s employment can be handled to minimise damage to their previous employer.
While it is necessary to dismiss an employee, or they may have valid reasons for resigning, there are clear legal guidelines for how this is to be handled and the penalties for failing to adhere to the legal process can be significant.
Always follow correct procedure and have all the facts before you dismiss an employee. Employsure are specialists in all aspects of fair and unfair dismissals. Call us today on 1300 651 415 for specialist advice.
For peace of mind, please call our 24-hour Advice Line now on 1300 651 415