Notice Your Dismissal Obligations
Dismissing an employee is a difficult experience for both worker and employer. What are the guidelines when giving an employee notice that their employment is terminated?
Dismissing an Employee
There must be a valid reason for an employer to dismiss an employee. This reason(s) must be based on the employee’s poor work performance, conduct or changes to the operational requirements of your business.
Terminating an Employment Contract
An employment contract is terminated by:
- An employee resigning (usually a notice of their intention to resign is required from the employee);
- Completion of a fixed term contract (when the date started by the contract is reached) or completion of a fixed task contract (when the project the employee has been hired specifically to complete is concluded);
- An employer who, due to operational reasons, terminates an employee on the basis that the employee is redundant to the organisation’s operations; or
- An employer who dismisses an employee.
Where Dismissal is not Allowed
Employees cannot be dismissed for the following reasons:
- Being temporarily absent from work because of illness or injury;
- Being a member of a union;
- Participating in union activities outside working hours or with employer consent inside working hours;
- Wanting or not wanting to be a member of a union;
- Seeking election, or being an elected representative of the employees;
- Filing a complaint against the employer about non-compliance with any laws or regulations;
- Participating in legal proceedings against the employer;
- Taken or wanting to take parental leave; or
- Race, colour, sex, sexual preference, physical or mental disability, marital status, age, ethnicity or religion.
Types of Dismissals
Summary Dismissals
This is an instant or “on the spot” dismissal usually for misconduct by the employee. This is mostly avoided except in cases of extremely serious misconduct. Considerations include allowing the employee to explain, acting promptly when the incident happened, external concurrence that the conduct was seriously improper, the proper policies and procedures in place, and verification of the alleged misconduct by the alleged employee.
Ending Fixed Contracts
A fixed contract is a contract of employment that is “fixed” for a certain period or for a particular task or project. To avoid confusion or legal problems at the completion of the contract, the contract should be in writing and state the termination date or circumstances in which the contract is fulfilled. It should cover all circumstances that would allow the contract to be terminated earlier by either party. Any extension or amendment to the contract should be in writing and signed by both parties. It is good practice to issue the employee with written notice of impending completion of the contract.
Redundancy
This occurs when the work performed by an employee is no longer required to be done by anyone because the job is replaced by technology or the business is restructured thus the job no longer exists and the employee can no longer be retained due to economic circumstances. Employers are required by law to consult with employees or their representatives when restructuring the workplace.
Unfair Dismissals
This is when the dismissal is “harsh, unreasonable or unjust”. Factors taken into account is whether the employer gave reasons for the dismissal, allowed the employee to explain or justify why they should be reinstated or reemployed and providing the employee warnings of unsatisfactory performance.
Giving notice – Employer to Employee
It is better to give written notice of the termination, outlining the details of why it is occurring and giving the required notice period specified. In some circumstances, the appropriate advance notice is outlined in the contract or provide for a qualifying period where no notice is required.
To avoid any dispute, a notice should be given in writing or perhaps in front of a witness even if this is not a requirement. The requirement to give notice is waived if there is a breach of contract in the form of employee misconduct. There may be a right to pursue a civil claim for damages.
Giving notice – Employee to Employer
An employee has a right to resign but to avoid any misunderstanding or dispute, written notice should be given.
