The importance of knowing when you can say “You’re fired!”

Wednesday March 4, 2020

Staff can be a great asset to any business, but they can also be a time consuming distraction if they aren’t performing as they should.

Most employers dream of getting rid of the problem team member as fast as possible. But employees have rights, so if you don’t follow the correct procedures, your problems can become even worse.

Are you a small business employer?

Before you take any action to dismiss a staff member, you need to establish if you are considered a ‘small business employer’ under the Fair Work Act.

To qualify, you need to be employing less than 15 employees (including any other employees being dismissed) immediately before or at the time of the dismissal. Casual employees are not counted unless they are employed on a regular and systematic basis. This can be difficult to determine as one of the examples below will demonstrate.

As a small business employer, you are obliged to follow the Small Business Fair Dismissal Code (the Code). The Code states:
“It is fair to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.”

“Serious misconduct” includes:

  • Theft
  • Fraud
  • Violence
  • Serious breaches of occupational health and safety procedures

While this may all sound quite straight forward, there are many examples where businesses have got it wrong. The consequences for them have been financial loss as well as significant stress in defending their decision to Fair Work. This is the reason we always recommend you talk to us before taking any action.

What is a casual worker?

Earlier this year, an unfair dismissal decision made by a Member of the Fair Work Commission was overturned by its full bench. The decision was made on the basis there had been an incorrect determination on whether the dismissed employee was a casual.

Casuals have protection for unfair dismissal if:

  • They have worked for an employer for at least 6 months (or 12 months for small businesses)
  • Their employment was regular and systematic
  • The casual employee has a reasonable expectation of continuing regular and systematic employment

Errors in determining employment status by Commission Members, emphasise the complexity of the whole issue of employment and dismissal. That’s why business owners and managers should always seek advice from The HR Dept before taking action.

Misconduct vs Poor Performance

While you are entitled to dismiss an employee on the grounds of misconduct, you need to be clear on the differences between misconduct and poor performance.

One National transportation company was ordered to pay a wrongfully dismissed employee $17,500. The organisation believed the employee had breached health and safety requirements. However, the employee was able to demonstrate it was a lack of training and therefore he was dismissed without following due process.

What should you do?

The short answer is do nothing until you have spoken to us. We’ll investigate the situation and provide advice on whether you are dealing with a misconduct issue or a performance issue. Then we’ll guide and support you through the entire process.

If you have an employee or two who aren’t as effective as you would like, get in touch.

Preventing People Problems

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