Fairly Dismissed

NATIONAL

Terminations or dismissals are a complex area to navigate. There are several rules that businesses must adequately follow to mitigate risk of claims. Before considering terminating or dismissing an employee, performance management is crucial.

Staff who are not meeting business expectations and standards must be appropriately addressed in a constructive and sensitive manner. This upholds the positive working environment of the store and ensures that the morale of the staff members remains healthy and productive.

Employee issues occur because of varied reasons, such as: • being unaware of the store’s expectations and standards; • relational, background, and cultural differences; • lack of skills or knowledge to perform duties; • no constructive feedback, coaching, or counselling; • personal matters; and • workplace bullying and harassment. Understanding the underpinning reasons will assist in properly resolving issues, but also having a clear process in place will simplify prolonging matters. A suggested performance management process may include: • determining the employee issue at hand; • evaluating and examining the issue; • setting a meeting with the employee to speak about the issue; • collectively brainstorming a resolution; and • supervising ongoing performance and behaviour.

If similar or same issues recur, consider repeating the process. If the misconduct is serious, a decision to terminate may be explored, but the dismissal must be “fair”, “just” and “not harsh”.

Any termination or dismissal process requires two elements: • having a valid reason; and • following due process.

Valid Reason

Previous cases before the Fair Work Commission established that a valid reason for termination or dismissal includes: underperformance, misconduct, or capacity related matters. Each type of employee issue requires a distinct approach and consideration of the circumstances in which it occurred.

Due Process

Due process is a broad term that requires us to consider a range of factors, including: • whether the employee was notified of the valid reason; • whether the employee was given an opportunity to respond to any reason related to their performance, conduct, or capacity; • whether the business allowed the employee to have a support person present to assist with discussions relating to the termination or dismissal; • if the dismissal related to unsatisfactory performance by the employee, whether the employee had been warned about that unsatisfactory performance before the dismissal; • the degree to which the size of the store’s enterprise would be likely to impact on the procedures followed in effecting the termination or dismissal; • the degree to which the absence of dedicated human resource management specialists or expertise in the business would be likely to impact on the procedures followed in effecting the termination or dismissal; and • any other matters that the Fair Work Commission considers relevant.

Due process clearly focuses on the principle of “procedural fairness”. The Fair Work Commission wants to see whether in the process of terminating or dismissing an employee, the business afforded natural justice.

Apart from following the list above, businesses could consider engaging an independent third party to investigate and consult. A critical point of the due process is being patient when managing employee issues. Additionally, providing the employee in simple and plain language the reasons behind being disciplined and allowing a right of reply. More importantly, ensuring the employee is aware that their employment was at risk and making the consequences of their non-compliance very clear to them.

MGA TMA can assist Members with managing underperformance and terminations in their businesses. We can provide templates for warning letters, performance checklists, disciplinary meeting guides, performance management plans, notices of disciplinary meetings, termination letters, and much more. Should you require any assistance, please do not hesitate to contact MGA TMA on 1800 888 479.