Dismissing an Employee
Having to dismiss an employee or manage an ill, injured, or underperforming employee can be challenging as well as fraught with legal risk.
Getting professional legal assistance ensures that you comply with the law and reduces the chance of an employee making a claim against the business or even individuals associated with the business. We can assist your business to lawfully go through the process of dismissing an employee. If an employee is dismissed in an unlawful way, the employee can make a claim for unfair dismissal, general protections, or a discrimination claim. We help you take all the steps to minimise this from occurring.
It's usually a critical step in the process to ensure the employee has procedural fairness. This means setting out the potential reasons for the employee's dismissal and giving the employee an opportunity to respond. You also need to ensure that the ultimate reason for dismissal is sound and defensible.
These can include:
- the employee committing serious misconduct, such as deliberately refusing to follow a lawful instruction
- Putting the profitability of the business at risk
- Putting the safety of others at risk.
Other forms of misconduct can include:
- Consistently arriving late
- Failing to follow policy and procedure
- Behavioural issues
- Putting the reputation of the employee in disrepute
- Failing a drug and alcohol test
- And many other reasons.
The employee may also be unable to do the key parts of the job, whether related to health issues or other reasons such as the loss of a driving licence.
If the business needs to undergo a restructure and does not require certain positions to be performed by anyone, then we can assist with lawfully carrying out the redundancy.
There are many things a business needs to get right in order to avoid unintentionally breaking the law. These include things such as complying with consultation requirements under any modern award or enterprise bargaining agreement.
Failing to comply with these requirements can result in the business being fined, which is called a pecuniary penalty and could be significant.
Businesses need to ensure that the redundancy meets the technical definition of genuine redundancy under the law. This means that the business intends to make a redundancy that is no longer required to be performed by anyone. This can happen in a variety of ways, including the position being abolished as a whole or the tasks and responsibilities of the position being distributed to other positions.
Another important factor in meeting the technical definition of genuine redundancy is ensuring that all suitable alternative employment positions have been offered to the employee. If this does not occur, and the redundancy is found not to be genuine, then the employee may have grounds to succeed in an unfair dismissal claim.
There are other procedural requirements in redundancy, such as ensuring the employee has procedural fairness similar to the dismissal procedures previously mentioned. There could also be further requirements to notify outside organisations such as unions or Centrelink if there are a significant number of people being made redundant, usually 15 or more at once.
Managing Injured Employees
If an employee has been injured at work or is experiencing a health issue outside of work, it's important that this is properly managed. If it's incorrectly managed, the employee could make a claim for unfair dismissal, general protections, or discrimination based on a disability.
The legal term for disability is quite broad and can include a temporary illness. The business does have grounds to dismiss an employee if the employee cannot perform the key requirements of the job and no suitable adjustments to the role can be made. This process like others requires careful steps to be taken to ensure that the business does not unintentionally break the law.
Some other scenarios that we've advised against include the abandonment of the role, where the employee simply does not return to work. Other situations include circumstances where the employee has lost a key qualification required to do the job, such as a driver's licence or the inability to renew a ticket.
Managing Underperforming Employees
If an employee fails to work to the appropriate standards and is underperforming, we can help you manage this lawfully. This usually involves placing the employee on a performance management plan of some sort, which could be formal or less formal depending on the size of the business. This effectively gives the employee an opportunity to improve their performance, and after a reasonable period, if their performance does not improve, then the same can apply if an employee is engaging in behavioural misconduct issues not related to performance.
We can assist you with taking the appropriate steps to guide the employee on expected behaviour and set up a good defence for the business in the event that the behavioural issues are ongoing and a dismissal is required in the future.
Managing employees or going through a dismissal process is never easy. We can help you navigate the complexities to ensure it's done correctly.