Too many employers end up in the Fair Work Commission defending unfair dismissal claims, because they don’t handle the termination process properly, according to industrial advocate Miles Heffernan from Employer Advisors.
“Even if employers sack a worker for genuine poor performance, or misconduct, they often end up in the Fair Work Commission because they stuff up the termination process,” Mr Heffernan said.
An employee can lodge an unfair dismissal claim if they earn less than $145,400 and have been working for your business for more than 6 months, or 12 months if you run a small business.
You must communicate the issues to the employee & give them a chance to improve
If you are dealing with poor performance, the first thing you need to do is talk to the employee, according to Mr Heffernan.
“You can’t expect a worker to improve their performance if they don’t know where they are going wrong, so you need to clearly identify what the performance issue is, and communicate that to them,” he said.
The same with issues of conduct – you must identify the specific unacceptable conduct and then communicate that with the employee said Mr Heffernan, who also advised employers to keep a record of these meetings, in the form of written notes.
If there is no improvement in performance, or change in conduct, that’s when you can take more formal action, including written warnings.
“At this stage, you should hold a formal meeting, and issue a written warning, so the employee gets the message that things are serious, and their job is at risk,” Mr Heffernan said.
Once again it is important to document all meetings or discussions.
You don’t need to give three written warnings
Mr Heffernan said employers do not need to give three written warnings before dismissing a worker, but recommended one final step before termination.
“You should have one final show-cause meeting with the employee, to tell them that you have made a preliminary decision to terminate their employment, and then give them a chance to let you know about any reason why you shouldn’t sack them,” he said.
“It could be that they are having personal problems, or have been suffering an illness, or they might have been subjected to bullying and harassment in the workplace that you might not be aware of.”
Always get expert advice before taking the final step
At this point, Mr Heffernan recommends employers seek expert industrial relations advice.
“If you’ve followed all these steps, it is definitely advisable to get some expert advice, just to make sure you are legally covered,” he said.
“It’s better to pay for advice at this point, rather than in the Commission defending an unfair dismissal claim down the track.”
If you need help managing difficult employees, we can help.
Please call Employer Advisors today on 1300 853 837.
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