A lot can go wrong when you are ending an employment relationship, but you can avoid claims or be in a better position to defend claims if you get the appropriate advice before taking action.
Reasons for an employment relationship ending can vary, but might include:
- resignation by the employee
- dismissal with notice for underperformance
- dismissal with notice for misconduct
- summary dismissal for serious misconduct.
When we are looking at termination of employment by the employer, the key risk is typically a lack of correct process. In an unfair dismissal case, the Fair Work Commission will need to consider whether there was a valid reason for termination, whether the termination was harsh, and whether the termination was unjust. It is this last one that is the most typical reason why terminations are found to be unfair.
The process that should be followed will vary depending on the exact reasons for termination, but typically should include:
- the reasons for the dismissal being put to the employee (for underperformance or misconduct, the allegations must be put)
- any response from the employee is heard and considered
- the employee has the opportunity to have a support person present
- if the termination relates to underperformance, the employee has had a reasonable opportunity to improve
- if the termination relates to misconduct (other than serious misconduct) that the employee has previously been warned.
Because of the complexities that can be involved in terminating an employee, we encourage members to contact us first for advice, or attend one of our training sessions.
If members need assistance with termination of employment, or want to attend a training session on managing underperformance and misconduct, please contact the WR team on firstname.lastname@example.org, or on