10 Things You Should Never Do When Terminating Employees

Don’t fire an employee for no reason

In considering whether a dismissal was harsh, unjust or unreasonable, the Commission will take into account whether there was a valid reason for the dismissal to occur.

Typically, for a dismissal to be for a valid reason, the reason should either:

relate to the employee’s capacity to do the job; or
relate to the employee’s conduct.

For example, in Kolodka v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2012] FWA 7828, Mr Kolodka was dismissed for his poor behaviour and attitude towards his team members, customers and supervisors. It was found that there was a valid reason for the employee’s termination due to the employee’s conduct.

In Harte v Forbes Australia Pty Ltd T/A Hunt Boilers [2011] FWA 6948. Mr Harte was injured at work and subsequently placed on office duties. Mr Harte was unable to perform the inherent requirements of his job. This was found to be a valid reason for the applicant’s dismissal. It was found that the employee’s dismissal was not harsh, unjust or unreasonable.

Don’t surprise the employee

In considering an unfair dismissal claim, the Commission will also take into account whether the employee was notified of the reason for their dismissal.

Notification of the reason to terminate must be given to the employee:

before the decision to terminate is made;
in detail; and
in plain and clear terms.

If an employee is not informed of the reasons, a claim for unfair dismissal claim may be successful.

Don’t prevent an employee from responding

An employee should be provided with an opportunity to respond to the allegations against them, and the proposed reason for their termination.

If an employee is prevented, or not provided with the opportunity to respond to the proposed reason for their termination, a claim for unfair dismissal claim may be successful.

Don’t deny the employee a support person

If an employee requests to bring a support person to meetings, any unreasonable refusal by the employer will not be looked at favourably by the Commission.

In Dewson v Boom Logistics Ltd [2012] FWA 9027, the employee was dismissed for serious misconduct including allegations of assault and bullying. The employee requested that a particular union official be present at the disciplinary meeting as a support person. The employer refused the request and nominated a different union delegate to act as a support person. It was held that the employer unreasonably refused a support person of choice and, in light of other procedural deficiencies, determined that the dismissal was unfair.

Don’t treat employee’s differently

The Commission may take into account differential treatment when deciding if a dismissal was unfair.

For example, if an employee has been dismissed for accessing Facebook during work hours, but other employees have engaged in the same behaviours and remain employed, the Commission may consider this to be unfair.

If you decide to terminate an employee, make sure that all employees consistently.

Don’t fire an employee for an unlawful reason

Historically, protections from unlawful actions being taken against employees in the workplace have been scattered throughout various legislations. However, with the introduction of the Fair Work Act, it saw these protections collected and unified in a single piece of legislation.

In essence, the Fair Work Act states that an employee cannot be terminated for the following reasons:

The employee has, or exercised workplace rights;
The employee has engaged in industrial activities;
Because of a particular attribute of the employee, such as the employee’s:
- race
- colour
- sex
- sexual orientation
- age
- physical or mental disability
- marital status
- family or carer’s responsibilities
- pregnancy
- religion
- political opinion
- national extraction
- social origin.

Although the above list is not an exhaustive list of protections, if there is a breach of the protections above, an employee may bring a General Protections claim against the employer.

Should an employer be found to have contravened the protections of the Fair Work Act, the company may be liable to pay significant penalties and damages.

An example can be seen in the case of Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875. In this case, Ms Sagona was employed as a photographer for over 12 years with a small family-run business. When Ms Sagona fell pregnant, she told her employer and requested to take maternity leave. It was held that ultimately, the company behaviours towards Ms Sagona (due to her pregnancy) were in contravention of the Fair Work Act.

The Company was ordered to pay Ms Sagona a total of $26,097.63.

Don’t terminate employment electronically

In most circumstances, an employer should not terminate an employee using electronic communications such as text message.

In the case of Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, termination by electronic device was considered.

It was found that, “Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face.”

The court went on to state that “Even in circumstances where text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.”

Don’t start the process without a witness

Although this is not a legal obligation, if you have decided to terminate an employee, you should always have a witness present.

Typically, it is not difficult, or particularly expensive for a disgruntled employee to commence unfair dismissal proceedings against a former employer.

If you did not have a witness present during the employee’s termination meeting and the matter progresses to a hearing before the Commission, it will be your word against your former employee’s.

Typically, in larger companies, a member of human resources should be present during the employee’s termination. However, if you do not have a Human Resources department, a manager will suffice.

Should your former employee bring a dismissal claim against you, having a witness provide evidence on behalf of the company is invaluable.

Don’t let the employee leave with company property

As above, although this is not a legal obligation, if you have decided to terminate an employee, you should always seek to recover any company property the employee may have in their possession.

Typically, at the end of the termination meeting, you should ask the employee to hand over his or her keys, phone, laptop, and any other company-owned equipment or supplies.

If the employee does not have immediate access to the requested property, make arrangements as to when you expect it back.

Don’t forget an employee’s final pay

If you have decided to terminate an employee, an employee should get the following entitlements in their final pay:

outstanding wages for hours they have worked, including penalty rates and allowances; and
any accumulated annual leave, including annual leave loading if it would have been paid during employment.

An employee may also be entitled to the following payments, depending on the employee’s length of employment or the circumstances of the dismissal:

accrued or pro-rata long service leave
payment in lieu of notice
redundancy pay.

Most awards say that employers need to pay employees their final payment within 7 days of the employment ending. However, employment contracts, enterprise agreements or other registered agreements can also specify when final pay is due.

If an employee’s award, contract or agreement doesn’t say when an employee’s final pay must be paid, then it’s best practice for an employee to be paid within 7 days of their employment ending.

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