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Dismissing an employee

Firing someone can be a traumatic experience for both you and the employee concerned. This section will give you practical advice that will help avoid dismissal predicaments.

How do I dismiss an employee?

A valid reason must exist for you to be able to dismiss an employee. This reason(s) must be based on the employee's poor performance, conduct or changes to the operational requirements of your business.

You have probably used some unsuccessful ways already, such as:

• in a fit of anger, usually over a large mistake made by the employee
• self-consciously apologising for no longer being able to employ the employee
• with self-pity, after telling the employee that you can no longer work together.

There are better ways of dismissing an employee that will maintain their self-esteem and help them start their search for a new job. Most of this will be easy if you have set up appropriate workplace policies and procedures to your workplace.

What is the best way for both me and the employee?

If you are dismissing an employee for financial reasons, provide information showing why you must take this action. If you don't provide this information, you run the risk of the employee thinking you are making up a reason just to get rid of him or her. Your employee will probably appreciate the business necessity, but he or she will need to be assured that this is the real reason.

If the employee is being dismissed because of managing performance, then their work history must justify your action. But please note, just because an employee has been through a system of counselling and warnings about their poor performance, the dismissal is still likely to be a shock. You must take the time to make sure the employee understands your reasons.

If the employee is being dismissed for misconduct be sure of your grounds - get legal advice or contact your employer organisation. You should still try and ensure the employee understands your reasons, it can save problems later.

You must make sure that the employee is totally convinced that the decision is final. If the employee leaves the meeting thinking that there is still a chance then you have failed.

You have also created a situation where the employee's false expectations can turn into a belief that he or she has been wrongfully dismissed and a desire to punish you legally.

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What ways can an employment contract be terminated?

An employment contract can be terminated by:

• an employee resigning (which usually requires the employee to give notice of their intention to resign);
• completion of a fixed term contract (when the date stated by the contract is reached) or completion of a fixed task contract (when the project the employee has been employed specifically to complete is concluded);
• an employer who, due to operational reasons, terminates an employee on the basis that the employee is redundant to the organisation's operations; or
• an employer who dismisses an employee.

Do I have to give the employee notice?

In general, it is better to give written notice of the termination, outlining the details of why the termination is occurring and giving the required notice period specified in the award or agreement.

Most awards specify that the party wishing to terminate the employment should give the other party appropriate advance notice, usually one week.

Some awards provide for a qualifying period during which no notice is required. Other awards need more than one week's notice.

To avoid any misunderstanding or dispute, notice should be given to your employee in writing or perhaps in front of a witness, even though this may not be a requirement of the relevant award.

The requirement for you to give notice is waived if there is a breach of contract in the form of your employee's misconduct. You may also have the right to pursue a civil claim for damages.

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What should I pay an employee when he or she is dismissed?

This is not the time to make an employee wait for any money they are owed. Make sure you pass on any entitlements you are required to pay. Again, any difficulties at this stage will increase the employee's bitterness and could result in unnecessary legal expenses for you.

Except in special cases, you cannot legitimately "stand-down" an employee without pay and special termination provisions apply if you wish to introduce technological change.

You should also provide the employee with a written statement indicating the period of his or her employment, job classification and the type of work involved. This will be needed by the employee if they need to apply for unemployment benefits or as proof of experience when applying for another job.

You are also required to provide a group certificate for taxation purposes within 14 days of the date of the termination taking effect.

Sample statement of employment history

Are there any circumstances when I cannot dismiss an employee?

You cannot dismiss an employee for any one or a combination of the following reasons:

• when your employee is temporarily absent from work because of illness or injury
• is a member of a union
• participates in union activities outside working hours or with your consent inside working hours
• does or does not want to be a member of a union
• is seeking election, or is an elected representative of the employees
• has filed a complaint against you or another employer about non-compliance with any laws or regulations
• has participated in legal proceedings against you or another employer
• has taken or wants to take parental leave, or
• race, colour, sex, sexual preference, physical or mental disability, marital status, age, ethnicity or religion.