You can’t fire an employee for being late… or can you?

No quality employer likes to be in the position of having to fire an employee, but there are occasions when it does become necessary. The Fair Work Act is frightened many employers unnecessarily, so here’s a few tips.

Firstly, understand when you are at risk of an unfair dismissal claim and when you are not. Many small businesses think that they are immune from these, but you are actually not immune.

Unfair dismissal can arise for small businesses when:

– you have had a full time employee ” on the books” for more than 12 months, or when you have had a part time employee ‘on the books’ for the equivalent of 12 months full time

– you had had a casual employee on the books for more than 12 months (or equivalent) in such a way as that employee is deemed to be a permanent or part time employee (which may include a casual employee without a contract)

– when the remuneration package is less than the limit specified (which is in the order of $100K)

You CAN fire an employee and avoid or succesfully defend an unfair dismissal claim when:

– the employee is terminated in less than the time period above, or more than the remuneration rate above.

– your discussions with the employee about their performance and any disciplinary actions are fully documented and the documentation stays on file.

– any evidence of the employee’s actions that have resulted in performance counselling or disciplinary actions is held on file

It’s very common for employers to reach a level of frustration with an employee, and then a single event occurs which becomes the basis for the termination, but when they have counselled the employee previously they have never made any notes so they have no evidence of a long (and often frustrating) process to get to that point.

NOTE there is NO “Three warnings” rule under the Fair Work Act. But you can’t terminate someone for merely a warning if you don’t have these past processes in place.”

– you have evidence that you have followed up previous counselling or disciplinary action with performance management, so you’ve provided the person the opportunity to improve.

So can you fire someone for being late?

Yes, and no. It’s pretty common that an employee has a long history of lateness and other issues, and on the last lateness occasion the employer “snaps” and offers instant dismissal. That’s actually the time when you SHOULDN’T dismiss.

Instant dismissal arises where there has been serious misconduct, and lateness of it’s own accord doesn’t classify as serious misconduct except in really rare circumstances.

So, what do you do?

– provide formal warnings on each occasion – NOT “comments” or “suggestions”, and document these 

– make clear that there will be consequences if the behaviour continued

– provide the employee with an opportunity to improve their behaviour and document the outcomes

– don’t fire at the moment you ‘snap’ but take the time to check the evidence, develop the package, talk to an HR/IR expert and terminate once your blood has subsided.

SO here’s a checklist from the EI Legal people..

Things to consider when terminating employment: 

• Has the employee completed the Minimum Employment Period? (This refers to the minimum length of employment that an employee must serve before they become eligible to lodge an unfair dismissal claim following termination)
• Is there a valid reason for the termination on the basis of the employee’s capacity or conduct?
• Has the employee been notified of that reason? (Three written warnings is common practice, but in some circumstances an employee can be terminated with fewer warnings, or immediately)
• Has the employee been given an opportunity to improve their performance?
• Has the employee been given an opportunity to respond to the matters raised and their response taken into account?
• Was the employee offered procedural fairness through the dismissal process?. For example were they offered the opportunity to have a support person present at meetings?
• Were the matters on which the organisation relied to terminate the employee raised in a timely manner during the performance management process?
• If you are a Small Business Employer (employ less than 15 employees) have you complied with the Small Business Fair Dismissal Code?

SEE MORE HERE

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