What you need to know about dismissal

A dismissal is when you end an employee's contract, with or without notice, or when an employee's fixed-term contract expires, and you choose not to renew it.

When should you dismiss someone?

Presumably, you hired this employee based on their skills, experience, or both. So, getting rid of them shouldn't be something you want to do. However, there are five broad reasons that would justify a fair dismissal:

1. Poor conduct, such as lateness.

2. Lacking capability or the qualifications for the job.

3. Redundancy, for example when downsizing a team.

4. A statutory duty or a restriction that forbids their employment from continuing. For example, if a courier has a driving ban.

5. Some other substantial reason that explains the dismissal.

Even with the above list, dismissal a member of staff is not as easy as telling someone, "You're fired!"

A little bit more is necessary to prove that, as an employer, you've acted in a fair and consistent manner before giving someone 'the boot'. Otherwise, you risk dismissing your employees unfairly.

Your dismissal procedure

To avoid a claim for unfair dismissal against you, you should take the following steps, in order:

1. Informal chat and improvement note

2. Verbal warning

3. First written warning

4. Second written warning

5. Final written warning

6. Dismissal, demotion, or transfer to another part of the business

In cases of gross misconduct, start the disciplinary proceedings at stage 6. This would be for serious charges like theft, violence, fraud, sexual harassment, etc.

If you go through a fair process then you might, in cases like these, skip a final written warning and give a summary dismissal.

Your dismissal procedures and policies should be open to your staff in their employee handbook, as well as in the statement of terms and conditions of employment. Give each new starter copies of these when they join. Whenever you make changes to these documents, tell all staff in writing.

The trick here is to cover your bases. Make sure everyone in your business has access to your policies and procedures for discipline and grievance.

Do this and it's fair to expect your staff to read and learn what you want from them and for them to behave in the right way.

With BrightHR all employees in your business can have digital access to their employment handbooks, contracts and any other company policies when they need them. By utilising the unlimited HR document storage you can store all your necessary HR documents in one easy to access secure location.

Types of dismissal that you should avoid

There are unlawful types of dismissal. If you're found guilty of any of these, you'll face a heavy blow to your reputation and a large financial loss:

• Unfair dismissal

• Wrongful dismissal

• Constructive dismissal

Dismissal without notice

When you dismiss an employee, you'll normally have to give them their notice period.

A summary dismissal, or instant dismissal, which you've given out because of gross misconduct, does not require a notice period nor pay in lieu of notice (PILON).

Contractual notice periods range from less than one week for a new hire who has been with you for less than a month, to as much as three months for valuable, long-term staff, who you'll need time to replace.

If you haven't given employees notice periods in their contract, or this notice period is too low, they're entitled to statutory notice.

When the contractual notice is lower than the statutory notice due, the statutory notice overrides it because this is the minimum that the law requires.

If you dismiss someone without giving full notice, you could be guilty of wrongful dismissal.

Where we can help

If you need more support, BrightAdvice offers 24/7 expert employment relations advice to help you navigate these situations on a case-by-case basis.

Plus, with BrightBase, you get access to a range of HR document templates, including examples of written warning documents and confirming dismissals. With a document template it’s even easier to ensure that your formal documentation is accurate and written in-line with current Australian employment legislation.

To see HR software in action and to dicsover how BrightHR can support your business even in times such as employee dismissal, book a free demo today.