Terminating employees can be a minefield of compliance at the best of times, even when the reason for terminating employment is valid it is important that businesses understand and respect the need for procedural fairness to avoid unfair dismissal penalties.
Recent cases have highlighted that businesses are still falling into simple traps of skipping small steps when managing incidents that result in unfair dismissal penalties being applied and the Fair Work Commission noting that while the reasons for termination (such as fraud, theft, gross misconduct) were valid, the way the business managed the termination made it unfair.
Procedural and Natural Fairness
The management of employee performance or indeed the end of an employment relationship – be it by termination or redundancy – requires the observation of certain forms and elements that ensure the relationship ends appropriately.
None is more important than the concept of Procedural or Natural Fairness, wherein employees are offered an opportunity to understand the breaches and be given chance to explain their actions and behaviours and be given an opportunity to rectify or improve those actions and behaviours if appropriate.
Management needs to be open to the reform of the behaviour in instances where reform is appropriate.
For grievous misconduct and serious breaches it is still important for management to give the employee a chance to tell their side of the story as there may be mitigating circumstances that the employer should take into account before determining the appropriate response.
This requirement is not reduced when there is a clear and serious breach.
Even in serious instances of bullying, violence, theft and safety breaches, where the business has a zero tolerance approach and is likely to terminate any offending employees, procedural fairness must be satisfied. The Performance Management basics must be followed, including; the appropriate notification a performance management meeting, affording employees the opportunity for a support person at the meeting, outlining the breaches as noted by the business, and allowing the employee to respond to the breaches BEFORE a business decision on the future employment of the staff member is considered.
All line managers and team leaders need to be aware of the need to build this concept of procedural fairness into their performance management responses and to seek advice from managers and third parties if required.
Members are reminded that ACAPMA can assist in the performance management of employees in member businesses through the provision of advice and support as well as template letters and checklists.
Here to Help
ACAPMAs Employment Department Professionals are available to assist members by calling 1300 160 270 or via employment@acapma.com.au.
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals its free for members. ACAPMA membership is affordable at only $770 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA Membership.
