Reasons For Dismissal.

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Reasons For Dismissal.

One of the most important aspects to being an employer is knowing the intricacies of dismissals, and more particularly, when there are fair reasons for dismissal. There are many government regulations around dismissal, and as outlined in the Fair Work Act 2009, it is not appropriate for employers to dismiss employees based on their own unsubstantiated discretion. Hence, it is important that you understand exactly when it is appropriate to dismiss an employee.

Fair Reasons for Dismissal.

As you would expect, employers cannot dismiss their employees without the appropriate grounds to do so. In a lot of instances, say if an employee behaves badly, you may be tempted to end employment contracts simply as a reaction to the event. However, as stated by the law, you cannot dismiss any employee without a valid, sound, and defensible reason. These reasons are varied and come under four key areas:

  1. Capacity – if the employee lacks the ability, or is incapable, of completing the job
  2. Performance – if the employee’s performance is below what is required for the job, or if they are not meeting the standards outlined in their employment contract
  3. Misconduct – if the employee’s behaviour is below workplace standards, or if they take part in serious misconduct
  4. Redundancy – if the job which the employee was previously completing is no longer necessary for the business, or technology has made their role unnecessary

How to Dismiss an Employee.

Regardless of which area the reason for the dismissal may fall under, you need to follow fair and transparent procedures for dismissal. This means that you must adhere to the processes outlined and described in the employee handbook or employment contract.

In order to be compliant with these procedures, you must tell the employee in writing about the allegations against them, and give an opportunity to respond. As Australian workplaces operate under a structure of fairness and equal opportunity, it is only right that employees who are to be dismissed have the chance to defend their case.

It is important to follow these guidelines and make sure that you are only dismissing employees on fair grounds. If you do not follow good practice as outlined above, you may be running the risk that the employee you are trying to dismiss runs a claim for unfair dismissal. To avoid coming into any issues with dismissing employees, make sure that you seek advice in advance of taking any action.

Employsure advisers are experts in dismissal legislation. If you have any questions about reasons for dismissal, call us on 1300 207 182, or book a Free Workplace Check here.

Frequently Asked Questions

  • What Are The 5 Fair Reasons For Dismissal?

    In Australia, there is no legislated ‘5 fair reasons for dismissal’. There are many reasons why someone may be dismissed such as:

    • Ability to fulfil the role
    • Work performance
    • Behaviour at work
    • Redundancy

    Whether dismissal in the above circumstances is considered fair will depend on the specific circumstances (including the employee’s circumstances) and potentially the process that has been followed. Dismissing an employee can be tricky, and if employers don’t do it properly, they may potentially increase the likelihood of a successful claim against them.

  • What Can Be Classed As Constructive Dismissal?

    A constructive dismissal also referred to as a forced resignation occurs when it is considered that an employee’s resignation was forced as a result of the employer’s conduct. This can also include the acceptance of a resignation made in the heat of the moment.

    Whether a resignation will be found to be a constructive dismissal will vary depending on the specifics of the case. The onus is on the employee to prove that the employer forced their resignation. An example of constructive dismissal includes an employee who resigned after not being paid his proper wages for four months.

  • What is Automatically Unfair Dismissal?

    There is no such thing as an automatic unfair dismissal as each case needs to be considered on its individual merits and circumstances. Further, before a specific dismissal is determined by the Fair Work Commission to be fair or unfair, the employee must lodge a claim. There is no certainty that a claim will be lodged.

    However, some key factors you might want to consider (in the event your employees have unfair dismissal rights) include, but are not limited to, the following:

    • Whether or not a procedurally fair process has been undertaken (including the chance for the employee to respond)
    • Whether the reason for the dismissal is not for a protected reason (such as the employee has exercised a workplace right such as taking leave leave)
    • Whether you have evidence to support the reason for dismissal (for example a witness statement or customer complaint);
    • Whether the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
  • What is a Summary Dismissal?

    The term summary dismissal is often used to describe a termination for serious misconduct, as provided in the Fair Work Regulations 2009. If terminated on this basis the employer will not be required to provide an employee with a period of notice.

    A summary dismissal is a severe form of termination as notice is not provided and should only occur when it meets the definitions set out in the regulations. An employer should be very cautious about enacting this right and should still ensure a procedurally fair process is undertaken.

    Read more on summary dismissal here.

  • What Constitutes Wrongful Dismissal?

    Wrongful dismissal is not a term found in the Fair Work Act. Wrongful dismissal is a term used in Australian contract law when a contract is breached.

  • Do Employers Have To Give Written Warnings Before Firing?

    Whether warnings will need to be issued before dismissal will depend on the circumstances. Generally, employers should give employees a reasonable chance to improve before finally dismissing them for poor performance or behaviour.

    However, in the case of serious misconduct (summary dismissal), employers may not have to have provided previous written warnings to the employee. However, to meet the threshold for serious misconduct you may need to prove that the behaviour was wilful and deliberate and therefore that the employee knew they should not have engaged in the behaviour.

  • Can An Employee Take Leave During Their Notice Period?

    An employee can request to take annual leave during their notice period as long as they follow the normal annual leave procedures, if approved this will not affect the notice period. Normal sick leave procedures will also apply during this period.

    However, employers should note that if an employee is on or has pre-booked annual leave, this period cannot be considered part of the notice you are required to give.

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