Tag: termination

Terminating an employee can be a difficult, complex and sensitive process. There are many reasons why termination of employment might be necessary, and, in every case, employers must ensure they have a valid reason for the termination, which is justifiable given the facts.

Terminating an employee’s employment requires employers to consider several factors to ensure they are meeting their legal requirements for terminating an employee under employment law. Compliance with employment law not only ensures fair, just, reasonable and lawful practices in the workplace but protects employers from potential claims such as unfair dismissal and general protections (e.g. correct pay, leave and other entitlements).

Key rules and requirements employers need to be aware of to meet their legal requirements for terminating an employee:

Genuine redundancy

Redundancy occurs when an employer no longer requires an employee’s job to be done by anyone. Genuine redundancy is not considered unfair dismissal. If a termination will result from a redundancy, employers must first consider whether the redundancy is ‘genuine’.

For a redundancy to be deemed ‘genuine’ the following conditions must be met:

• the employer has provided evidence that the role is no longer required to be performed by anyone due to organisational changes;
• the employer has adhered to consultation requirements outlined in relevant award or enterprise agreement; and
• the employer has made a genuine effort to look for an alternative employment opportunity that may be suitable for the employee within their organisation or associated entity.

A redundancy is not considered genuine if the employer still needs the employees job done by someone (i.e. hires someone else to do the job), they have not followed the requirements to consult with the employee, or they could have reasonably given the employee another job in the company.

When an employee’s dismissal is a genuine redundancy, the employee cannot make an unfair dismissal claim.

Unfair Dismissal laws

When considering whether a dismissal is unfair, the Fair Work Commission (the “Commission”) will assess whether it is “harsh, unjust or unreasonable”. In most cases it is accepted that an employer must follow a procedurally fair process prior to terminating an employee.

Employers should be aware of the criteria that makes a dismissal procedurally ‘fair’, this includes:

• having valid reasons for the termination relating to the employee’s capacity or conduct;
• providing procedural fairness (i.e. providing the employee with written notification that their employment has been terminated, the reason why);
• offering the employee an opportunity to respond to allegations, with a support person present If they wish;
• whether the employee had been previously warned that their performance was unsatisfactory;
• the size of the business or lack of Human Resource management expertise that impacted on the termination process; and
• any other matters the Commission considers relevant.

Small businesses have different rules for dismissal which are set out in the Small Business Fair Dismissal Code (the Code). The Code provides protection for small business employers against unfair dismissal claims where they have followed the ‘Small Business Fair Dismissal Code’.

Discrimination and Adverse Action laws

Termination must always be based on a valid reason. Employees are protected under adverse action laws from termination based on prohibited grounds such as: race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibilities, pregnancy, religion, political opinion, national extraction and social origin.

Employees are also protected from termination if they are temporarily absent from work because of illness or injury, absent from work during parental leave or because of union involvement (or non-involvement).

Termination for serious misconduct

Notice of termination should be given to an employee in writing, except in cases of serious misconduct where immediate termination may be justified.

Serious misconduct may include incidents such as theft, fraud, workplace violence or refusing to carry out a lawful and reasonable instruction that is part of the job. In these instances, employers should make sure the process is fair, investigate the allegations, provide the employee with the opportunity to respond to the claims and pay out all outstanding entitlements.

Termination notice periods

An employer must provide an employee with written notice of the day of termination as outlined in the National Employment Standards (NES). Employees are generally entitled to notice, or payment in lieu of the minimum amounts of notice upon termination.

Notice periods are outlined in the NES or relevant industrial instrument and vary based on the employee’s length of service.

There are instances in which a notice period is not required including but not limited to termination of casuals and employees employed for a fixed period of time (other than apprentices). It is also not necessary for a termination notice period if the employee is being dismissed due to serious misconduct.

Consultation and procedural fairness

Consultation is key in any termination process. Regardless of whether the termination has come about due to serious misconduct, consultation and procedural fairness should be a part of every process.

Employers should always inform the employee of the reason(s) for the termination, provide the employee with an opportunity to respond (with a support person present if applicable) and consider alternative options to dismissal.

Post-employment obligations

Final pay is what an employer owes an employee when their employment ends. Following termination, employers are obligated to pay the employee their outstanding entitlements including wages, accrued annual leave and if applicable redundancy pay which is based on the employee’s length of service.

An award, employment contract, enterprise agreement or other register agreement can specify when final pay must be paid. If they do not the best practice is for an employee to be paid within 7 days of their employment ending or on the next scheduled pay day.

Understanding legal requirements for terminating an employee can be overwhelming. Employers should ensure they are well informed of their obligations under employment law and seek advice from a HR specialist. If you are considering termination Industryus can assist you to navigate the process, contact us to discuss today 07 5655 4047.

My staff member has raised a number of questions about his work conditions. It’s quite annoying and taking up too much of my time. Can I consider a dismissal or will it prove be a very costly?

A recent case from the Fair Work Ombudsman highlights the risk of dismissal of an employee under these circumstances.

In this case, a Gold Coast security company owner was penalised $115,668 by the Fair Work Ombudsman after he admitted taking unlawful adverse action against a guard by dismissing him.

It was found that the owner dismissed the employee after this employee had queried their own work roster.

The Fair Work Act 2009 makes it unlawful to take adverse action against an employee for making a complaint or enquiry in relation to their employment.

Therefore, this case is a strong reminder that adverse action penalties are uncapped and employers that do the wrong thing can expect hefty fines.

Employers who would like the peace of mind of having access to a HR specialist to better understand their workplace obligations, may wish to sign up to the Industryus HR on call advice service. Pay by the month, cancel anytime options are available. Call us on 07 5655 4047 or click here for more info.

 

Q: My employee has not shown up for work for three days and has not made contact at all to let us know what’s going on. Can I terminate the employee?

A: This situation could potentially be an abandonment of employment situation. Abandonment of employment occurs when an employer reasonably concludes that an employee no longer intends to be bound by the employment agreement that was entered in to, and therefore has a right to end the employment relationship by termination. Before acting however, there are a number of critical steps an employer should take.

In order for an employer to safely deem an employee to have abandoned their employment, the employer first must make a number of genuine attempts to contact the employee over a reasonable time frame to understand the reason for their absence. A genuine attempt includes trying to make contact by a combination of calling the employee’s home phone and mobile phone numbers, sending an email to a known personal email address, contacting a listed next of kin or any other usual contact method that your business uses. Failing these attempts, a letter on company letterhead should be sent to the employee’s home address asking the employee to make contact.

If the employee remains non contactable after a number of genuine attempts to make contact have been made, the employer may be in a position to terminate the employment relationship. However, as with any process which could potentially involve termination, it is highly recommended that employers seek advice from an employment relations professional prior to taking action.

If you require assistance or advice for your business, Industryus HR can be contacted on 07 5655 4047 or click here.

Q. I am planning the termination of a staff member who is currently on probation. The notice period is one week. Can I tell the employee not to return to the workplace for the notice period, and do I have to pay for the week considering the employee won’t be working it out?

A: Yes for both questions. While an employer who terminates an employee is able to advise the employee that they are not required to work out the notice period, the employer also has an obligation to pay the employee in lieu of working the notice period out. The payment in lieu must equal the full amount the employee would have been paid if they worked until the end of the notice period.

For help with questions like these and others did you know we have a HR advice membership? For any organisation which signs on for the Industryus HR advice membership, we are offering our complimentary HR Health Check which enables business leaders to understand where compliance gaps and risks are within their organisation.

For more detailed information on termination and notice periods or on information on how to subscribe to the Industryus HR advice line, please contact 07 5655 4047 or visit our website for more info.

A: It’s important to understand whether your business is classified as a ‘small business employer’, as under the Fair Work Act 2009 there are a number of concessions around termination for small businesses. For example, there is an exemption from paying redundancy pay for small businesses who are making a position redundant (although payment of notice still applies).

In order to work out if your business falls into the small business category, you will need to work out if it has fewer than 15 employees. To calculate this, count all permanent full time and permanent part time employees and also regular and systematic casual employees that your business has at the time of the applicable termination. If your calculation equals less than 15 employees, then you are probably a small business employer.

In instances where the business has close to 15 employees, particularly where there are a number of casual employees, it is strongly recommended to seek advice from a professional to have the calculation checked prior to taking any action.

Call Industryus HR on 07 5655 4047 or click here to send us a message if you require expert advice or assistance on matters involving the termination of employees and any other matters related to HR that you may wish to discuss.