Dismissal is an area of workplace law that can become very complex. If you wish to dismiss an employee, the legality of doing so will depend, to a large extent, on the unique set of circumstances in each situation. In other words, to lawfully dismiss an employee, the situation ought to be judged on a case-by-case basis.

Generally, an employee cannot be dismissed without notice for under-performance or minor misconduct issues. The most common ground for immediate termination is ‘serious misconduct’.

To dismiss an employee for serious misconduct, you will have to consider several important issues:

  • Handing over work;
  • Settling the books and final pay;
  • Any notice requirements;
  • What the applicable employment agreement defines as ‘serious misconduct’; and
  • How to find a replacement.

Serious Misconduct

If you dismiss an employee for serious misconduct, there is no notice requirement, provided the conduct falls within the statutory definition as contained in the Fair Work Regulations (reg. 107). Serious misconduct specifically refers to the following:

  • Stealing from the workplace/employer or work colleagues;
  • Acting fraudulently;
  • Being intoxicated at work;
  • Not being able to follow the directions of the employer;
  • Misconduct that places the health and safety of others at risk; or
  • Misconduct that puts the viability/profitability of the business at risk.

It should be noted that just because an employee has been accused of acting inappropriately does not mean that, all of a sudden, you’re entitled to dismiss an employee on the spot. You have to follow protocol by providing them with ‘procedural fairness’. Procedural fairness, when you wish to dismiss an employee, requires you do the following:

  • Give the employee an explanation of the allegation with as many relevant details as possible;
  • Give them the chance to respond to the allegation; and
  • Provide the employee with a support person. This might be someone in HR or a workplace counsellor.

Notice Requirement

If you wish to dismiss an employee, you might be obliged to comply with certain notice requirements set out in the relevant award or the employment contract. The above only relates to statutory notice requirements and the circumstances under which the notice requirement might be waived is based on the seriousness of the employee misconduct. In general, conduct that escapes the statutory notice requirement will be sufficient to escape the contractual notice requirement (if applicable).

Conclusion

Make sure you check your employees’ employment contracts, as well as any applicable awards and the Fair Work Act before you dismiss an employee. When you dismiss an employee, there is always the risk that you will end up facing a claim for unfair dismissal (amongst other actions). If you would like to have your employment contracts reviewed or drafted afresh, our team of experienced employment lawyers will happily assist you.

For more information, please contact LegalVision on 1300 544 755.

Emma Jervis

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