What is Dismissal

Dismissal is the termination of employment by the employer, usually for reasons of disciplinary action.
Dismissals need to be consistent with the terms of a contract, award, legislation and company policies. Resignations from employees that have been forced by the conduct, or a course of conduct by the employer are also treated as a dismissal (constructive dismissal). Employers should follow appropriate dismissal procedures depending on the type of dismissal. Dismissals may be for the following reasons;
  • Underperformance
  • Misconduct
  • Serious misconduct
Underperformance
Where the dismissal is performance related, the employer should performance manage the employee to ensure procedural fairness, and that there is a valid reason for the dismissal. The performance management process must be documented and formal warnings need to be provided in writing. Employees must be made aware that continued substandard performance may result in the termination of their employment.  Employees should be given a reasonable amount of time to improve their performance between each warning and before dismissal occurs.

Misconduct
An employee may be dismissed for ongoing repeated minor conduct infringements, for example repeatedly arriving late to work without a reasonable explanation. Similar to dismissal for underperformance, the employee would have to be appropriately performance managed for incidents of misconduct before a termination is warranted.  Misconduct differs from serious misconduct (below) in that one incident of misconduct may not be serious enough to warrant dismissal.

Dismissal for Serious Misconduct
Where the dismissal is for serious misconduct, the employer will make sure that the alleged misconduct has been properly investigated following fair and consistent procedures and that any disciplinary action (for example, instant dismissal with no notice) has been warranted. All allegations of misconduct must be investigated fully, with all parties involved being given the opportunity to provide an explanation of their conduct before an instant dismissal is carried out. In the case of instant (summary) dismissal for serious misconduct, there is no requirement to provide notice or payment in lieu of notice. Only accrued entitlements like annual leave and long service leave have to be paid out, and in some states pro rata long service leave will apply or may be forfeited. 
It should be noted that an employer is not obligated to dismiss an employee for serious misconduct without notice.  Providing notice or not when dismissing an employee for serious misconduct is at the employer’s discretion, depending on the severity of the incident.  Thus an employer may still dismiss an employee for serious misconduct and give them notice on termination. In this situation, the employer may choose to pay out the employee in lieu of their notice rather than having them work the notice period.

Procedural Fairness
In all dismissals, employers must ensure the steps of procedural fairness are followed. If procedural fairness is not shown throughout the dismissal process then the employee may be able to make a claim against the employer for unfair dismissal to seek compensation.
In a dismissal the employer will prepare a letter of termination for the employee dismissed which includes the notice required under the relevant industrial instrument, the reason for the dismissal, a request to return equipment before final payment is made, details of any unused annual leave, long service leave and hours worked and confirmation of when final payments of these entitlements will be made to the employee.

Payment in Lieu of Notice
It is at the discretion of the employer to decide if it would be better to pay in lieu of notice for the full amount that would have been payable to the employee if the employee would have worked during the notice period. An employer may do this in situations where they believe this to be better than having the employee work out their notice period.

Unsuccessful Probation Period
Employees can be dismissed during a probationary period (if one has been stipulated to them in their employment contract) without having to properly performance manage the employee. The correct notice period has to be given and a letter declaring that they have been unsuccessful during the probationary period resulting in their employment with the business not continuing.

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This document does not constitute human resource or legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should contact the HR Help Desk or seek professional advice before acting or relying on any of the content. © Wentworth Advantage Pty Ltd 2017