How do Perth businesses fire employees legally and avoid going to Fair Work?
May 26, 2016 | By Christine Howitz, Vitil
Firing employees in Perth, Australia properly can be a time-consuming process for Perth small businesses, due to the legal procedures that can be lengthy and confusing. It's no surprise that some Perth employers and business owners find themselves in hot water, facing a potentially costly and unnecessary unfair dismissal claims, because they've rushed through the process without due care and attention, and managing their human resources.
The question Vitil Human Resource Services is asked most frequently is how do we manage our team and stay on the right side of employment law?
Summary dismissal – how can I sack employees quickly?
Unfortunately, you can't just shout "you're fired!" like you're on The Apprentice, this is sure to land you with an unfair dismissal claim if you haven't followed the correct process!
Firstly, every Perth businesses Employment Handbook and Employment Contract, should contain the relevant policies such as your disciplinary procedure, which your employee should have agreed to at the beginning of their employment.
If this is the case, and your employee has committed gross misconduct, you can proceed to terminate their employment once the following has been undertaken.
- Perform a thorough investigation
- Ensure you have sufficient evidence
- Invite them to a meeting
- Allow them the time to give their side of the story
If the employee cannot dispute the evidence, you can terminate their employment without notice. This is known as summary dismissal. Of course, it's always possible that the employee will have a different version of events which must be considered, and so the decision to terminate may not be appropriate. Therefore, the outcome of the meeting could be something less than dismissal such as the start of a disciplinary process.
But, what exactly constitutes gross misconduct?
It's a serious offence. It could be harassment, bullying, theft, the assault of an employee, or even a deliberate leak of vital company information. Anything that could put the business at risk of financial damages, or something that adversely affects the safety of your team.
How do we manage poor performance if we can't do a summary dismissal?
Poor performance is never enough for you to dismiss someone straight away and summary dismissal is not the appropriate course of action.
The correct course of action is to manage their poor performance instead, to ensure you aren't accused of unfair dismissal. Just as in the question above, you should start by following the capability procedure as set out in your Employee Handbook or Employment Contract.
To avoid confusion, a capability procedure relates to an employee's lack of ability or skill loss of an essential qualification, a lack of capability due to ill health, or perhaps losing their driving licence. Literally, are they capable of doing the job?
Disciplinary procedures however relate to an employee's conduct, and includes things like poor attendance and timekeeping, or as mentioned above can be gross misconduct such as theft or bullying. A simple way to decide is to consider the 'can't do v. won't do' principle – are they underperforming because they can't do it, or because they simply won't?
If you have got to the point where performance hasn't improved, then you should have a formal conversation with the employee to let them know that you have concerns which may impact their on-going services and employment. Having followed the capability procedure, you should have collected sufficient evidence to support your decision and provide this to the employee.
Once you have spoken to them and allowed them to give their version of events, set goals for how you'd like to see their services and job performance improve and assign a timeframe. Then check back in a month or two.
If their performance does not improve, then it might be time to start a formal disciplinary process.
Vitil's Human Resource Service Consultants are a Perth based boutique HR recruitment specialist consulting firm, who offer flexible, reliable and affordable outsourced human resource support and recruitment services. Your requirements and your business needs are our key focus.
By outsourcing HR to an expert in Human Resource Services and recruitment in Perth, our experienced professionals can objectively assess your environment, your human capital needs, and ensure you lead and manage your team to enhance your businesses performance.