What are your options when an employee does not show up for work? As a small business owner, when this happens it can cause big problems, especially if you rely on them to run the business.

So when can you terminate an employee for this kind of conduct and when is a warning sufficient? There are different circumstances that need to be considered before you go ahead and make any brash decisions. You may also want to seek legal advice from a small business lawyer or an employment lawyer if you’re unsure of how to deal with this particular employee.

Fair work

The Fair Work Act governs all employment relationships between employers and employees in Australia, and prescribes minimum entitlements of permanent employees. One of the most important provisions of this piece of legislation is related to dismissal. This applies to all full time, part time employees and sometimes even casual employees. It also applies even when there is no formal employment contract in place.

If you breach the Fair Work Act in dismissing an employee, you may find yourself responding to an unfair dismissal application, so its important regard is had to 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. Sick leave and carers leave is a statutory right as contained in the Fair Work Act, and you cannot terminate an employee’s employment simply for exercising that right.

If, however, the employee is simply not showing up for work without cause or notice, this may be a ground for terminating his or her employment.

Step one

The first and most important thing to do is to issue them a formal warning letter inviting the employee to attend a meeting with you. Every employee deserves and 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 and the employee needs to be informed that they have a right to have someone else also attend the meeting, such as a union representative. In addition, they need to be told that the meeting is being held as part of a formal review of their employment. It might be a matter of issuing the employee with a formal warning letter informing them that they have been missing work on a regular basis and giving them an opportunity to attend a meeting with the employer.

At the meeting

We recommend that during the meeting the employee be provided with a short and concise list of reasons why their employment is being reviewed. In addition, so that there is no confusion, the employee should also be provided with a clear set of criteria by which the employee’s future performance can be measured, it may simply be “notifying us by phone as early as possible if you are taking sick leave”. This should, however, take into consideration the employee’s response and their reasons as to 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.

Step two

Although there is no legal requirement to do so, we generally recommend that there be a second formal letter and meeting. This allows you to show that you have made an honest effort to work with the employee to help them retain their employment.

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 1 year then you need to only provide them 1 week notice. If they have been working for you for between 1 to 3 years then you will need to give them 2 weeks’ notice. For more details regarding notice and final pay requirement, click through to the link below:

http://www.fairwork.gov.au/ending-employment/notice-and-final-pay/dismissal-how-much-notice

Conclusion

Sometimes it can be difficult to terminate an employees contract, however, considering the overall health of your business, it may be the best thing to do. Make sure that you follow these instructions so that you don’t find yourself having to go through lengthy and expensive legal proceedings. For further legal assistance, get in touch with LegalVision’s team of employment lawyers on 1300 544 755.

Emma Jervis

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