When you are looking to terminate an employee’s employment, you are required to write a letter of termination. In general, employers are not to terminate employees unless they have given the employee proper written notice specifying the day that employment will be terminated.
Within the letter of termination, you need to decide whether you are going to pay the employee in lieu of notice, or if there is a notice period, you have to specify how long the notice period will run for.
What is summary dismissal?
Summary dismissal involves terminating an employee’s employment contract for serious misconduct, and typically takes effect immediately. This is only relied on by employers in very serious circumstances and often requires no notice period. The types of misconduct that may qualify for summary dismissal can be found at the Fair Work website:www.fairwork.gov.au.
As a small business owner, it is imperative that you follow the Small Business Fair Dismissal Code whenever you wish to end an employee’s employment,
Process for summary dismissal
There are a number of important considerations that you should keep in mind before making any impulsive decisions to summarily dismiss an employee. Here are some tips if you wish to dismiss an employee.
What is the serious misconduct? Does it warrant getting legal advice?
What were the actions of the employee that you believe may warrant immediate termination? How has this misconduct had an impact on the business as a whole? Has it affected the other staff or the reputation of the business? What policies or contracts was the conduct in contravention of?
Remember that termination without notice is a drastic measure that should be taken very seriously, as there are repercussions that flow from a dismissal that is later found to be unfair in the circumstances. If you are unsure of whether your dismissal is fair, speak with an employment lawyer before making a decision.
Talk to the employee about the misconduct
It is worth speaking directly to the employee about the alleged misconduct to ascertain his or her side of the story to ensure that this is not just a big misunderstanding. If there is genuine misconduct, you should make clear about what you intend to do about the situation, e.g. terminate their employment, give a formal warning or ask them to voluntarily leave the business.
If the meeting is part of a formal procedure, the employee is entitled to be in the company of a ‘support person’, which could be a family member, a representative or someone from human resources. When the Fair Work Commission (FWC) reviews claims for unfair dismissal, this is an important factor that the FWC take into account. Your employee is entitled to a support person regardless of whether or not there was genuine misconduct and you should provide reasonable notice to allow your employee to arrange for a support person to be at the meeting.
Weigh up your choices
Consider the conduct and make a decision about what to do.
Will you give a written warning to the employee and give them a chance to rectify their misconduct? Or is the misconduct of such a serious nature that the employee must be terminated?
This can be a difficult decision to make, and it is a decision which can significantly impact your business. For this reason, you may want to have a chat with an employment lawyer and go through your available options before making a decision.
Write the letter of termination
If you have decided (hopefully after having consulted a lawyer) that the conduct warrants summary dismissal, prepare the letter of termination accordingly. Although it is not a legal requirement to give any notice for serious misconduct, it is worth doing so to avoid any issues down the line.
A clear letter of termination will set out:
- when the employment relationship ended;
- on what grounds the employee’s employment is being terminated;
- what procedures were taken prior to termination; and
- whether there is a notice period (generally not for serious misconduct).
You should keep a copy of the letter of termination for your records. This will be particularly helpful in the event that the employee makes an unfair dismissal claim with the FWC.
Don’t be surprised if the employee attempts to bring a claim against you for unfair dismissal or discrimination. This is quite common. However, if you have received proper legal advice before terminating your employee’s employment and have followed the correct procedure, there shouldn’t be any problems.
If you have a problematic employee and are not sure of what steps you can take, contact LegalVision today! One of our experienced employment lawyers would be happy to assist you and provide you with the legal guidance you need.