The following steps should be adapted to each situation where a dismissal may be necessary for a particular employee, in order to reduce the risk of that employee making an application for Unfair Dismissal.
1. Valid reason
It is, of course, still critical that there is a valid reason for dismissing the employee. This can be related to capacity or conduct, including workplace safety and the welfare of other employees.
2. Put the employee on notice
Provide a warning ideally in writing, highlighting the areas of concern and that, if those areas are not rectified within a specified period of time, a dismissal may be necessary.
3. Opportunity to respond
Allow the employee the opportunity to give a written response.
4. Have a follow-up meeting(s) after a reasonable period of time has passed
If the areas of concern have not been adequately rectified, meet again with the employee to discuss your concerns. Depending on the circumstances, including the length of their service, it may be appropriate to give a final opportunity to respond and meet.
5. Support person
At any meeting with the employee where you discuss their employment, give them the option of bringing along a support person.
6. Letter of termination
After you have met with the employee, provide a letter clearly setting out the reason(s) for their dismissal. It would be prudent to reference the steps you have taken (as above), including dates, where suitable.
If you own a small business (i.e. less than 15 permanent employees, including "permanent" casuals), you are further protected if you follow the Small Business Fair Dismissal Code, which encapsulates points 1 to 3 and 5 to 6 above. If this applies to you, then keeping a checklist to show compliance with the above steps will generally be sufficient to defeat any claim by an employee for Unfair Dismissal.
What to do now?
Be sure to give each employee fair and reasonable process in the event that you need to manage performance and/or ultimately make a dismissal.
If you would like to know more about this area, feel free to give or Mitchell Zadow a call on (03) 8561 3318.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Mitchell is the Managing Principal of our law practice.
He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.
