Running a business and managing employees is not an easy task and ensuring you have the correct policies and procedures in place to discipline employees, when necessary, is vital. If the correct procedure is not followed when terminating the employment of an employee the Fair Work Commission has the power to uphold an unfair dismissal claim against you, even if the reason for the dismissal is valid.
Take for example the recent case of F v Bunnings Group Ltd, t/a Bunnings [2014]. In this case an employee was terminated by Bunnings on valid grounds as a result of the employee becoming involved in a brawling incident at the workplace. The court found that that the dismissal of the employee was harsh, unjust and unreasonable because the investigation of the incident and the disciplinary procedure that followed was not appropriate conducted. Bunnings was found to have breached its obligation to the employee.
A situation such as this arises where a termination is found to be unfair to the employee due to them not being given procedural fairness. This can mean that a paper trail or documentation of the employee’s behaviour does not exist, or the employee is not notified as to the reason their employment was terminated, or the employee is not given an opportunity to respond to the allegations or rectify their behaviour.
It is vital that employers have in place a set of policies and procedures that deal with terminating the employment of an employee and the steps which must be followed in carrying out this process. Not having such policies and procedures in place can rob the employee of the procedural fairness that is often the basis for an unfair dismissal claim. The courts do not look favourably on situations when an employee has been robbed of natural justice or due process due to the actions of their employer.
To avoid an unfair dismissal claim being brought against your business you have a lawyer draft these policies and procedures to ensure they are consistent with the procedural fairness requirements stipulated in the Fair Work Act 2009 (Cth). You policies and procedure should address the following in regards to terminating an employee:
- the allegations against the employee should be detailed to them, preferably in writing;
- the employee should be provided with an opportunity to respond to the allegations prior to their employment being terminated;
- the employee should be allowed to have a support person at any meeting where the allegations are discussed;
- before arriving at a decision to terminate the employee they should be provided with a chance to improve their performance, or address the issue, and at this time they should be warned that a failure to do so my result in the termination of their employment;
- you should have a performance review procedure in place to catch any issues early and address these with the employee;
- practical efforts should be made to help the employee improve their performance in the workplace.
- ensure that you consider the response of the employee prior to terminating their employment; and
- make sure you have a detailed paper trial of notes, warnings and meetings in relation to the employee to demonstrate that you did in fact follow a process and provide the employee with procedural fairness.
Having policies and procedures in place that address these issues will save the business a lot of time and money if an unfair dismissal claim is brought by a former employee.