I want to terminate an employee. How do I go about doing so?

An employer may lawfully dismiss an employee provided that :

  • there is a valid reason;
  • procedure is followed in accordance with appropriate policies, contracts or industrial instruments;
  • the dismissal is fair; and
  • the proper notice of termination has been given.

An exception to the requirement to give notice of termination is where a worker is in serious breach of their obligations and the employer can generally terminate their employment with immediate effect for serious misconduct.

If the reason for dismissal is inappropriate, or the employer has not complied with the correct procedure, the employer may be open to a claim by the employee for unfair dismissal.  This process has the potential to be expensive and troublesome.

In order to avoid potential claims for unfair dismissal, it is important that employers understand how lawful dismissal can take place and even when a lawful dismissal can be unfair.

Under the national workplace system, there are special unfair dismissal arrangements that apply to small businesses.  The arrangement for small business employers provide for the following benefits:

  • a minimum employment period of 12 months instead of six months (employees can't make an unfair dismissal claim in this 12 month period);
  • a simple Fair Dismissal Code and checklist to help employers ensure dismissals are not unfair; and
  • a special service for small and medium sized businesses from the Fair Work Ombudsman.

For more information on this topic, contact Jonathon Hadley or Lydia Daly.

 
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