Whenever you have to fire someone, there are inevitably many issues to consider. The short answer to this question is that you can fire someone for not doing their job properly. However, firing someone should always be last resort. You should try and manage their performance first, and consider whether there is any risk that you will be slapped with a “general protections” claim.

What is a “General Protections Claim” and Why Should I Care?

Under the Fair Work Act 2009 (Cth) (‘the Act’), employees are protected from various workplace actions such as:

  • Temporarily taking time off work because they are sick or injured;
  • Discrimination; and
  • Being pressured to take a pay cut because of their underperformance.

If you then fire your employee, they can lodge a claim in the Fair Work Commission (“the Commission”) if they think you dismissed them not because of their performance, but because of their family responsibilities, being temporarily off sick or making a complaint.

What Does This Mean For Me?

If one of your employees is turning up to work late, or not doing the work that they are usually expected to do, there may be an underlying reason. It is important to be aware that if the Act protects this underlying reason, you should have clear evidence around why you fired the employee.

If your employee brings a “general protections” claim against you, the Commission will look at whether one of the protected attributes (e.g. taking reasonable time off for family responsibilities) was the real reason why you fired the employee.

The key focus for the Commission will be: “why was the employee fired?”

You would fall foul of the law if you fired the employee because of one of the protected grounds. The Commission will consider all the evidence surrounding the dismissal – this is your opportunity to put forward your side of the story (i.e. you only fired them because of underperformance). The Commission will take into account the employee’s particular circumstances and your reasons for firing them.

For example, you may have fired an employee while they were injured and temporarily away from work because of that injury. However, if their injury and temporary absence were not the reason why you fired them, and in fact, you fired them because they weren’t doing their job properly, you may be able to argue that you haven’t broken the rules under the Act.

Taking this example further, if their sick leave was one of the reasons for their dismissal (along with their poor work performance), then you may be in breach of employment laws if their decision to take leave was a “substantive and operative” reason for firing them.

If I Shouldn’t Fire Someone Right Away, What Should I Do?

The simple answer to this question is performance management.

If your employee isn’t meeting the expectations of their role, you should consider implementing a process to manage their performance. Underperformance, in this context, should be distinguished from misconduct.

Stealing from you, or assaulting other employees, although obviously a breach of general workplace standards, is misconduct. Such misconduct may be grounds for immediately firing the party involved.

Performance management will help you gather evidence to mitigate against the risk of losing against a “general protections” claim. It also makes good commercial sense to tackle underperformance head-on. The longer you leave the issue, the more likely it will impact on the productivity of the wider workplace.

What Does Managing Someone’s Performance Involve?

The Commission has published guidelines about the best way to deal with underperforming employees. If you are unsure about where to start, you should review these guidelines and adapt them to your particular workplace, and the circumstances of the employee in question.

The best way to improve performance includes:

  • Identifying and analysing the problem (e.g. consider why your employee is unmotivated to fulfil the requirements or your role);
  • Meeting with the employee in private, where you give them the chance to explain why they have been underperforming; and
  • Jointly developing a specific plan to improve performance (such as by introducing flexible arrangements for someone who has significant carer responsibilities).

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If you have any questions about whether you have grounds for terminating an employee, get in touch with our employment lawyers on 1300 544 755.

Amritha Thiyagarajan

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