Oct 23rd, 2017
Nine steps for employers to take to avoid dismissal problems are noted below. You will not completely solve all future problems, but you will avoid many unnecessary ones and generally have more time for running your business.
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The pre-employment communication; the letter of offer and company policies and procedures
Be careful in specifying what you want and expect when you hire new employees. Having clear, unambiguous policies in place and making them known to all staff is an important first step. These policies, on a range of relevant workplace issues (including termination of employment), should be put in writing and made available to all staff. Make sure you refer to termination of employment provisions, at least stating the agreed period of notice. Also flag any behaviour that would constitute a serious breach of the employment contract and indicate the consequences.
The best way to pull the necessary information together is to compile a policies and procedures manual. This can be done by gathering the information gradually. Keep a file and note the rules and practices you want followed in your business when recruitment and termination are concerned. Over time you will cover most of the important areas. You can use this approach to any aspect of your employee relations policies and procedures. You do not have to incorporate policies manuals into employment contracts; in fact, for a number of reasons, it is wise not to do so. All you need do is to refer to the existence of the policies and be confident that the employee (or prospective employee) knows of their existence.
It is usual to provide for a probationary period —the standard probationary period under the Fair Work Act is six months continuous service with the employer (or 12 months in the case of an employer with fewer than 15 employees).
The point of a probationary period is to allow both the employer and the employee a chance to assess each other and the job and decide if they wish to continue the relationship. There is no penalty for either party terminating the contract in the probationary period.
It is sometimes difficult to specify a reasonable probationary period for executives. If an executive took three months to find a job, it may be viewed as unfair to allow for termination of employment without compensation within the first three months of employment. Courts may consider that the employer in this case should have been more thorough in the selection process.
Make sure that it's clear who has the power to hire and fire
This simple communication allows all managers to know what they can and cannot do in relation to recruitment, discipline and termination. Employees likewise know who to answer to and who has the responsibility for what.
Keep a 'staff notes' journal or similar document
This is where you record information relevant to your relationship with your staff.
Get into the habit of keeping this sort of diary. It does not take long. After all, how could you keep track of the progress of a supply contract without paperwork?
Build this into your day. Note down any events, exchanges, promises, other undertakings and questions resolved or unresolved that may impact on employment relationships.
If this sounds like too much work, adopting the practice of (at least) taking down some brief notes whenever you have a private meeting with an employee. This will serve to jog your memory and may clear up any confusion in the future.
Give your line managers/supervisors some guidance and training
Some dismissals arise out of a simple clash of personalities. It's hard to avoid this sort of problem, but you can at least lessen it by helping your staff at the coalface to handle some of the controllable ones. So, for example, lead a new recruit into the management ranks by talking about what you expect and giving the new manager a chance to ask questions.
Another good idea is to allow the new manager to absorb the approach of a manager who does his/her job well. In other words, the new manager tags along for a while with the manager who is leaving. It means that the new manager may take a little time to settle in but it's a lot cheaper than fighting an unfair dismissal claim that should never have occurred.
Try to avoid on the spot or summary dismissals
These situations can be very difficult. An employee who commits a gross breach of his/her contract of employment will not be able to substantiate a case for unfair dismissal.
When an event of this nature occurs (eg an employee physically attacks a manager) there should be a procedure in place that requires another manager to become involved. If an incident occurs on a union site the relevant union official should be involved. The event(s) should be carefully spelt out and a record of the meeting kept. The senior manager should make a decision after hearing all parties.
In instances where an employee's actions are not wilful and deliberate, but rather constitute 'gross stupidity', summary dismissal may not be justified even if a valid reason exists for the termination of the employee.
Do not delay the decision
There are only four possibilities when considering dismissal. Determine which is appropriate and act promptly:
Summary dismissal is justified;
Dismissal with notice is justified, but not summary dismissal;
Dismissal is not justified but a warning/reprimand in writing is justified;
There is no cause for dismissal and an apology is due to the employee.
Issue warning letters and keep copies and follow-up
Try counselling and guidance to improve performance. However, if this does not work you must express your concerns in writing. If you do not put your concerns in writing then it is hard to complain later if the problem occurs again.
How many warning letters? There is no strict rule but it is advisable to give two warning letters plus a final warning letter. If there is no improvement then the letter of dismissal is the final step.
Be certain to have made genuine attempts to improve the employee's performance in the areas outlined in the letters.
Try to avoid relying on verbal/oral warnings. It is easy to forget or leave out important issues when giving a verbal warning, or for the message to be misinterpreted by the employee.
Counselling and genuine assistance to employee. Employers are expected to genuinely attempt to improve the performance of an employee who is subject to a warning.
A considered approach and a proper monitoring of performance would be expected of the employee.
Give the employee a chance to state his/her case
Federal law requires this. Think about a dismissal as a court-room situation. This may sound extreme, but it is emphasises proceedings must be fairly conducted and must be seen to be so. The employer puts forward the reasons for dismissal and the employee has a chance to respond. This should happen at each stage of the disciplinary process leading to dismissal (if that is where it leads).
Workplace Info Oct 23,2017
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