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.

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 not showing up for work.

For example, they may simply be sick or there could be a more serious family matter.

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 for work without cause or notice, you may be able to legally terminate their employment.

2. Issue a Formal Warning

If an employee is failing to show up to 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.

3. 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.

For example, this may be something simple like “notify us by phone as early as possible if you are taking sick leave”.

However, this should take the employee’s reasons on why they may not have been turning up for work into consideration. 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. Although there is no legal requirement to do this, it allows you to show that you have made an honest effort to work with the employee. Providing the employee with two chances to improve their performance would be gret evidence against the employee if they ever tried to claim unfair dismissal.

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.

For example, if they have been working for you for less than one year then you need to only provide them with one week’s notice. If they have been working for you for between one to three years then you will need to give them two weeks’ notice.

Key Takeaways

Sometimes it can be difficult to terminate an employees 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 a claim of unfair dismissal is not brought against you. If you have any further questions on terminating an employee, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

Emma Jervis
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