Julian Riekert, partner in law firm Lander & Rogers’ Workplace Relations & Safety team, reveals the most common mistakes he sees employers making during the dismissal process.
1. Failing to decide what the actual reason for dismissal is
According to Riekert, there are only three gateways to lawful dismissal under the Fair Work Act; those are:
- Performance or capacity related issues
- Serious misconduct
- Operational requirements of the business
“Employers have to decide which of those three is the principal reason for the dismissal, as each one requires a separate procedure – you can’t just apply a general process and hope that’s going to work,” Riekert said.
He explained that in cases of poor performance, the parties must have gone through a process that consists of counselling, training, and a warning.
In serious misconduct cases, the employer has to demonstrate that the employee’s conduct was in breach of either a contractual obligation or a policy, and was serious enough to warrant termination. They must also give the employee a reasonable opportunity to respond to the accusations against them.
A termination relating to an operational requirement is usually where the reason is a redundancy because the business has experienced a downturn. A ‘genuine redundancy’ has to satisfy three procedural requirements: a reason connected with the finances or technology of the operational needs of the business; the employee has been considered for redeployment; and the employer has discussed the redundancy with the employee and/or their union (if there is one) before making them redundant.
“By not choosing what the reason is, the employer can easily stray into the wrong process, which would automatically make the dismissal unfair,” Riekert said.
2. Not having policies, failing to train employees on policies, or not making employees aware of the company’s policies
“Lots of employers terminate workers for breaching their policies, but they often get into trouble because they haven’t actually made a clear policy and published it where all their employees can access it, or they haven't trained their employees on the policy,” said Riekert.
“Employers might think it’s clear enough because employees know about the policy, but they also need to be trained on how it affects what they can and cannot do.”
For example, an employee was dismissed for sexually harassing a customer, but was reinstated because the Fair Work Commission found that the policy wasn’t made clear to employees and that particular person wasn’t trained in the policy, what it meant and how to comply with it.
“Most sophisticated employers now have a whole range of policies covering appropriate workplace behaviour,” Riekert added.
“Often these policies involve areas such as IT use and appropriate workplace behaviour – such as sexual harassment and how to treat fellow employees.
“Usually these are published on an internal intranet, and it has to be shown that the employee knew the policies were there and how to find them.
“The employer also has to show that the employee was trained in those policies, so that the employee has no reason for not knowing about it.”
Riekert added that employers tend to make the mistake of taining their workers sporadically.
“Often employers run training sessions, and then forget about training until a new policy is introduced,” he said.
“What can happen then is that a new employee won’t have been told about the policy or received this training. If they are then dismissed for having breached the policy, it can easily be held to be an unfair dismissal.
“Another issue in this area is simply not having the policies in place at all.”
3. Responding to misconduct inconsistently
“This is an area in which so many employers go wrong,” Riekert said.
“If an employee is terminated for misconduct, it is expected that the employer is consistent in the way that it applies that policy and treats the people who breach it.”
He elaborated that if a particular person breaches a policy, and has been the source of workplace problems in the past, often the employer sees the breach as an opportunity to get rid of that member of staff, who is then terminated for serious misconduct.
“However, if the employee can refer to a co-worker who committed the same breach, but only got a warning, then the dismissal may be held to be unfair,” Riekert said.
“A lot of employers get into trouble simply because they haven’t dotted the I’s and crossed the T’s.”
Dismissing a member of staff is always a difficult situation but there are ways to ensure the process runs as smoothly as possible.