All businesses will, at some stage or other, have to deal with the issue of employee termination or resignation. This could be for a number of reasons from serious misconduct to poor performance. Here we look at how to handle each situation.
Termination
Whatever the reason is, before considering termination, a number of issues have to be dealt with.
Importantly, when it comes to termination (or dismissal) an employee should be given every opportunity to either improve his/her behaviour or performance.
If you are thinking of dismissing an employee, ask yourself the following questions:
Has the employee been given the opportunity to be heard? When employment is terminated for reasons relating to conduct or performance, employees must be given an opportunity to defend themselves against the allegations.
Has the required notice period been given? Unless an employee is guilty of serious misconduct, you must give the requisite period of notice or compensate the employee in lieu of notice.
Dismissal checklist
The following checklist provides a summary of the procedures to adopt when dismissing an employee. Use the checklist as a guide only. Termination is a complicated area and you should consult your legal adviser, the relevant government department or employer association before dismissing an employee.
Before dismissal:
In the case of poor performance, you should provide the employee with written details of their deficiencies and allow a suitable time period to remedy those deficiencies. If the performance does not improve, you should progress through a series of warnings.
In the case of misconduct, it only justifies dismissal if repeated (such as absenteeism). You should progress through a series of warnings, with a final written warning stating that repetition will result in dismissal.
In the case of serious misconduct, you should conduct a proper investigation into the matter to determine what actually occurred and check that there were no mitigating circumstances, such as other employee involvement. You should act promptly on the matter.
In all of these instances, the employee should be allowed to address the allegations against him/her. Full details of the allegations should be given to the employee and the employee should be allowed to have a representative present, if applicable.
If you still wish to dismiss, you should consider whether you would be able to justify the dismissal before the relevant industrial relations commission. It may be appropriate for you to seek legal advice.
If dismissal appears inappropriate, you may wish to consider alternatives. For example, in the case of consistent poor performance, the employee may accept a position with less responsibility.
Upon dismissal, you should do the following:
Give the employee written confirmation of the dismissal
Unless the dismissal is for serious misconduct, give the employee the period of notice required by law or payment in lieu
Unless there are reasons not to do so, provide the employee with brief, written reasons for the dismissal
Pay the employee all moneys owed to him/her.
Certain reasons are prohibited from being valid grounds for termination, including the following:
Temporary absence from work due to illness or injury
Union membership or participation in union activities outside working hours, or during working hours with consent
Non-membership of a union
Seeking office, acting, or having acted, as an employee representative
Filing a complaint or participating in proceedings against an employer involving an alleged violation of laws or regulations
Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
Absence from work during maternity or other parental leave, and
Refusal to negotiate an Australian Workplace Agreement.
If An Employee Resigns
While termination of employment at the initiative of the employer is the type of dismissal that attracts most attention, the majority of terminations are at the hands of the employees, usually in the form of a resignation, for reasons such as another job, opening their own business or ill health.
Here are some points for you to remember about resignations:
Make sure the resignation is in writing. That way there can be no room for disagreements about the facts at a later date.
Make sure the acceptance is in writing. If an employee tells you he/she wishes to resign, you should give a letter of acceptance, even if the employee refuses or fails to put the resignation in writing.
Employee must give notice. The notice period required should be whatever period is specified in the parties agreement (such as the award agreement) or, where there is no specific agreement, reasonable notice.
Reasonable notice depends on the circumstances of the employment. Managerial and professional employees ought to give sufficient notice to allow the employer to find a suitable replacement or at least, to arrange a proper transfer of work in progress.
If an employee gives less than the required notice, or fails to work out the notice period required, it is always open to you to accept this. The termination date for the calculation of entitlements is the last day worked.
Once a resignation is given by an employee, it cannot be withdrawn except with your consent. It is not uncommon, however, for an employer to want an employee to stay and he/she will try to persuade the employee to reconsider, even offer incentives, such as an increase in wages. This is not really to your benefit. The employee will probably still leave at a later date and in the meantime, you are paying a higher wage for that employee. It is better to accept the resignation and then find a more suitable replacement.
