A handy guide for Employers - Employee Termination – What to do and what not to do!
Employee termination is a critical and challenging aspect of human resource management that can significantly impact an organisation's reputation, culture, and legal standing.
When handling employee termination, it’s crucial to follow legal processes carefully to avoid disputes and potential claims, such as unfair dismissal or adverse action claims. Here’s a guide on what to do and what to avoid during employee terminations.
What To Do
1. Follow Fair Work Guidelines: Ensure that you comply with the Fair Work Act, including the requirement for a valid reason for termination, such as poor performance, misconduct, or redundancy.
2. Provide Clear Documentation:
Keep detailed records of employee performance, warnings, and any issues that led to the termination.
Ensure you’ve documented any performance improvement plans and reviews.
3. Communicate Effectively:
Be clear and respectful when explaining the reasons for termination.
Provide the employee with the opportunity to respond to any issues raised during the termination process.
4. Offer Notice or Pay in Lieu of Notice:
Ensure the correct notice period is provided as per the employee’s contract or as required by law.
If immediate termination is required, offer pay in lieu of notice.
5. Ensure Procedural Fairness:
Allow the employee to be heard and respond to allegations (if applicable).
Conduct a fair investigation into any misconduct claims before deciding on termination.
6. Provide Entitlements:
Ensure the employee receives all due entitlements, including accrued leave, redundancy payments (if applicable), and superannuation.
7. Follow Internal Policies: Adhere to any internal policies or procedures for employee discipline and termination, especially for larger organisations where policies may guide specific processes.
8. Be Aware of Special Protections:
Consider if the employee has special protections, such as being on parental leave, having a disability, or making a workplace complaint, as adverse action claims can arise if termination is linked to such circumstances.
9. Seek Legal Advice:
Before terminating an employee, consult a legal expert. This allows you to explore all available options and ensure you're mitigating any potential risks. Legal advice helps you assess the situation thoroughly and ensures that your business complies with relevant employment laws and regulations.
“This proactive step can prevent costly disputes and ensure a smooth termination process. ”
What Not To Do
1. Do Not Dismiss Without Cause: Terminating an employee without a valid reason can lead to an unfair dismissal claim.
2. Avoid Immediate Termination Without Process: Unless it’s a case of serious misconduct, do not terminate without following due process, such as issuing warnings and giving the employee a chance to rectify their behaviour.
3. Don’t Ignore Employment Contracts: Failing to follow the terms of the employment contract, especially regarding notice periods and termination procedures, can lead to breach of contract claims.
4. Avoid Unlawful Discrimination: Ensure that the termination is not based on unlawful discrimination, such as race, gender, age, or any protected characteristic under anti-discrimination laws.
5. Don’t Forget Redundancy Requirements: If terminating due to redundancy, ensure you meet consultation requirements, offer redeployment options (if available), and provide appropriate redundancy payments as required by law.
6. Don’t Disclose Sensitive Information: Keep termination discussions confidential and only share the necessary details with the involved parties. Avoid disclosing reasons for termination to other employees unless required for specific reasons (e.g., internal transparency).
7. Avoid Emotional or Reactive Decisions: Ensure that the decision to terminate is based on logical and legal grounds, not emotional reactions to personal conflicts or misunderstandings.
“By following these steps and avoiding common pitfalls, you can manage employee terminations in a way that minimises risk and maintains compliance with Australian employment laws. ”
If you need more specific advice or assistance, engaging with a legal expert can help you navigate complex termination scenarios.
Protect Your Business and Reputation—Get Expert Guidance on Employee Termination Today!
Don't let a misstep in the termination process put your business at risk. Contact Connected Legal + Commercial for tailored legal advice to ensure a smooth, compliant, and fair process that safeguards your organisation. Reach out now for a free 15-min initial consultation and take the first step towards confidently managing employee terminations.
Email: info@connectedlegal.com.au
Phone: 1300 804 195
DISCLAIMER
The content given herein is provided for information purposes only. It is general in nature and does not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters.
Connected Legal + Commercial does not accept any liability to any person for the information (or use of such information) which is provided herein or incorporated into it by reference.
The information is provided in good faith on the basis that all persons accessing the content undertake responsibility for assessing its relevance and accuracy and will seek appropriate formal legal advice accordingly.