Donald Trump made the catchphrase, “You’re fired!” famous as host of ‘The Apprentice’ – but is it really that easy for a boss to get rid of a difficult or misbehaving employee?
Well, the answer is almost always, no – because the law does not normally allow for such immediate and serious decisions to be made.
Law protects workers from unfair and unlawful dismissals
Australian employment laws gives protections to workers from unfair dismissals or unlawful dismissals.
This is why it can take weeks or even months to terminate an employee’s employment, as an employer tries to follow a fair and lawful process.
Wise managers always take these steps to ensure that the risk of an unfair dismissal claim by the employee is minimised.
Serious misconduct can lead to immediate dismissal
However, there are some situations when an employee’s misconduct is so serious that immediate dismissal is warranted.
Examples include things such as theft, fraud, assault, being drunk at work, or failing to follow an employer’s lawful and reasonable directions.
But how do you know if an employee’s actions constitute “serious misconduct” in the eyes of the law.
Here are some questions worth considering:
- Was the misconduct wilful or deliberate?
- Was the misconduct inconsistent with the continuation of employment?
- Did the misconduct cause a serious and imminent risk to other people’s health and safety?
- Did the misconduct cause a serious and imminent risk to the reputation, viability, or profitability of the business?
- Has the misconduct permanently destroyed the relationship of trust and confidence between the employer and employee?
Each instance needs to be considered on a case by case basis
Industrial advocate Miles Heffernan from Employer Advisors said managers need to consider each instance of misconduct on a case by case basis.
“Sometimes employers are too quick to move to sack a worker for serious misconduct, when the incident does not meet the threshold of serious misconduct, and as a result, they end up in the Fair Work Commission defending an unfair or unfair dismissal claim,” he said.
“That’s why businesses should always engage the services of an expert industrial relations firm like ours, who can not only advise on the best way to handle a difficult employee, but we can actually manage the process for you.”
If you need help managing a difficult employee, including commencing a dismissal process, we can help.
Please call our team at Employer Advisors today on 1300 853 837.
For more information about unfair dismissal, click here.
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