As a small business owner, when an employee consistently fails to show up for work, it can cause big problems. So, when can you terminate an employee for this kind of conduct? Or, when is a warning more sufficient? There are different circumstances that need to be considered before you go ahead and make any rash decisions. This article will explain what legal steps to take if an employee fails to show up for work.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
1. Know Your Rights
The Fair Work Act governs all employment relationships between employers and employees in Australia. It also prescribes the minimum entitlements of permanent employees. One of the most important parts of this law is related to dismissal. If you breach the Fair Work Act while dismissing an employee, you may find yourself responding to an unfair dismissal application. Therefore, it is crucial that you satisfy all the legal requirements.
In many cases, there may be very legitimate reasons why an employee is absent from work.
In most cases, unless they are being unreasonable, you won’t be able to terminate their employment if they have a legitimate reason. Sick leave and carers leave is a right in the Fair Work Act. Therefore, you cannot terminate an employee simply for exercising that right.
However, if an employee is simply not showing up without cause or notice, you may be able to legally terminate their employment.
2. Issue a Formal Warning
If an employee is failing to resume work and you are considering terminating their employment, you must first issue a formal warning letter. In this letter, you should invite the employee to attend a meeting with you.
Every employee has a right to know that their employment is currently being reviewed. This is not simply a sit down over a cup of coffee and a quick chat. It needs to be a formal meeting. The employee also must be informed that they have a right to have someone else also attend the meeting. This person might be a union representative.
Continue reading this article below the form3. Have the Meeting
During the meeting, you should provide the employee with a list of the reasons why their employment is being reviewed. In addition, the employee should be provided with a clear set of criteria that their future performance can be measured.
However, you should also consider the employee’s reasons on why they may not have been turning up for work. The employee should also be told that if they continue to not attend, their employment will be reviewed and they may be terminated.
4. Issue Another Formal Warning
If the issues with an employee continue, you should send another formal letter and have a follow-up meeting. This letter should explicitly warm that if an employee fails to resume work without a reasonable excuse, they risk termination of their employment agreement.
Although there is no legal requirement to do this, it is best practice to make an honest effort to work with your absent employee. Importantly, record the dates of meetings you have with your employee about their performance and keep records of any warning letter your business sends to them. When you provide your employee with two chances to improve their performance, this becomes great evidence against the employee if they try to claim unfair dismissal in the future.
5. Termination
If nothing improves, you can terminate the employee. Unlike the warning letters, which can technically be verbal, the termination must be in writing. You will need to notify the employee about why you are terminating their employment and when their last day of employment will be.
Their last day of employment will depend on how long they have been working for you, as set out in the Fair Work Act or pursuant to a prescribed notice period in the contract of employment.
Key Takeaways
Sometimes it can be difficult to terminate an employee’s contract. However, it may be the best thing to do to ensure the prosperity of your business. Following the law when going about terminating an employee is crucial to ensure that an employee cannot bring a claim of unfair dismissal against you.
If you have any further questions about terminating an employee, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
The Fair Work Act is a piece of Commonwealth legislation that governs national workplace relations. As an employer, you must comply with this Act, especially when considering to dismiss an employee. Indeed, the Act has provisions outlining your employee’s legal entitlements to pay, leave and termination. Hence, if an employee is consistently absent from work, ensure you take proactive steps to address the problem before terminating their employment contract. Otherwise, you may open yourself to an unfair dismissal claim.
The Fair Work Commission handles unfair dismissal applications and other issues in relation to the Fair Work Act. If an employee claims you unlawfully terminated their employment, you may find yourself in front of the Commission. This makes it crucial to keep records of meetings and any forms of correspondence you have with the employee in relation to their performance. In doing so, you can defend the claim by presenting evidence that the dismissal was reasonable and that you made several attempts to warn the employee.
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