As an employer, one of the most difficult situations you will have to deal with is an underperforming or disruptive employee. In every company there is bound to be one or two who slip through your careful interview procedures. The candidate seems perfect for the role, enthused, friendly and with the right qualifications. But soon it becomes apparent having this employee in your work place is not tenable.
Often he or she is making every effort to put the best foot forward before the expiration of the probationary period, so it may not become obvious until afterward that there are some serious issues.
He doesn't show up to work, he calls in sick every Monday, he has a drug problem which impacts on his work, takes 2 hour lunch breaks, she arrives late, she takes the odd $20.00 note out of the till or the employee otherwise engages in gross misconduct.
It's intolerable and you need to rid your workplace of this employee.
The Fair Work Act governs the relationship between employee and employer. It provides protection for employees against unfair dismissal and adverse action. It further provides for avenues for employees (or ex-employees) to seek remedies against their employer in cases of unfair dismissal or adverse action.
The remedies available for an employee include reinstatement, compensatory damages (including recovering wages) and punitive damages payable to the employee. For this reason in dismissing an employee, it is essential the employer takes all possible steps to terminate the employment appropriately.
Ending up in court in a he-said/she-said dispute or arguing over the meaning or context of a vaguely worded termination letter is any employer’s worst nightmare. Not only is it costly but it is time consuming, stressful and can negatively affect a business' reputation.
Summary dismissal or instant dismissal is only available in limited situations. Whether or not an employer is going to be 'in the clear' when summarily dismissing an employee will depend on the terms of that employee's contract, his or her role, the duration of the employment, the probation period and the nature of the employee’s behaviour.
Other factors within the matrix of fact can also impinge on an employer’s ability to summarily dismiss an employee without consequences. It is not uncommon for a rogue employee to allege dismissal was due to the exercise of a workplace right and have outside factors (such as an injury) support his or her version of events.
Once it has been established summary dismissal is available in all the circumstances, an employer needs to take appropriate steps to terminate the employment. The dismissal procedure employed can have a significant affect on the strength of an employer’s position should the employee allege unfair dismissal has occurred. This may include providing opportunities for retraining, written warnings, notice periods, and in some situations, making a payment to the employee.
Aitken Whyte Lawyers can assist you in determining whether termination on a summary basis is suitable in your situation or if the employee should be performance managed with appropriate warnings put in place. Obtaining legal advice before dismissing an employee is highly recommended. However when this doesn't occur for example when dismissal happens in the heat of the moment, Aitken Whyte Lawyers can assist you with any disputes following termination or dismissal.