Avoid Dismissal Problems - An Employer's Checklist

No employer wants to face an unfair dismissal claim. You may feel that you have a contented team now but even the best of staff relationships can break down over time. And if it does go off the rails you can't assume that a simple resolution will be found. Follow the steps in the checklist below and avoid unwanted dismissal problems.

Or that there will be an amicable agreement as to what are reasonable terms, or even that there will be an amicable agreement that the relationship has actually been terminated.

So, it really makes sense to regularly review your staffing situation, each staff position and where there is a concern, the original terms of agreement. This sets the scene from day one for an amicable parting of ways should the situation arise.

Follow the steps in the checklist below and avoid unwanted dismissal problems.

Checklist

1. Get the recruitment process right first up. The vast majority of termination problems can be avoided simply by recruiting the right person for the job. So before you begin the recruitment process ensure that you:

Think through the job description and key performance indicators (KPI's) carefully – then commit them to writing.
Determine whether the job responsibilities and (KPI's) can be adequately carried out by a casual staff member or do you require a full-time or part-time employee?
Have in place quality procedures which are being followed.
Determine key questions to ask each candidate at the interview.
Have in place a process to check all references.
Have made a decision on whether to have a detailed written contract.
Have developed a letter of offer.

The letter of offer to the successful candidate should be clear in respect of:

Salary
Commencement date
Your expectations of the new employee
The workplace responsibilities of the new employee
Termination of employment provisions including:
- the agreed period of notice,
- what constitutes a serious breach of the employment contract, and
- what the consequences would be.
It is also a sensible practice to make new staff aware of your company's policies and procedures manual, which sets out clearly your company's rules and practices.
If you are not using an employment contract then this letter of offer may need to be more detailed - including key performance indicators, reporting line, training required, career path etc.
And once you're ready to make an employment decision - be sure that you recruit a person who will bring the skills, experience and attitude that is required of the role and who will comfortably fit in as a team member.

2. Probation period

For wages staff
A three month probationary period is usual. This period allows you and the employee to assess each other and the job and decide if the fit is right. There is no penalty for either party terminating the contract in this period.

For executives
It is sometimes difficult to specify a reasonable probationary period for executives. If an executive took three months to find a job, it may be viewed as unfair to allow for termination of employment without compensation within the first three months of employment. Courts may consider that the employer in this case should have been more thorough in the selection process.

3. Ensure that it's clear who has the power to hire and fire

This allows all managers to know what they can and can't do in relation to recruitment, discipline and termination matters.

4. Keep a "staff notes" journal or similar document

If possible maintain a daily record of information relevant to the relationship with your staff noting events, exchanges, promises, undertakings and questions resolved or unresolved that may impact on employment relationships.

If a daily record is not feasible adopt the practice of taking down some brief notes whenever you have a private meeting with an employee. A written record will jog your memory and ensures there will be no confusion or conflict of memory in the future.

5. Give your line managers and supervisors some guidance and training

Some dismissals arise out of a simple clash of personalities. To avoid this, talk through your expectations and give the new manager a chance to ask questions.

Allow the new manager to tag along with the departing manager if he/she is someone who has the right attitude and who does his/her job well. This will assist the new manager to settle in, and "absorb the right attitude" to the job.

6. Avoid on-the-spot or summary dismissals

An employee who commits a gross breach of his/her contract of employment won't be able to substantiate a case for unfair dismissal (what is considered a gross breach is a matter to be argued). The employer who has a clear policy on what constitutes a "summary dismissal" offence is in a stronger position than those employers without such policies.

Should an incident occur like an employee physically attacking a manager there should be a procedure in place requiring another manager to become involved. If an incident occurs on a union site the relevant union official should be involved. The incident should be carefully spelt out and a record of the meeting should be retained on file.The senior manager should make a decision after hearing all parties.

A summary dismissal may not be justified even if a valid reason exists for the termination of the employee, where an employee's actions are not wilful and deliberate - but rather constitute "gross stupidity."

7. Don't delay the decision

There are four possibilities when considering dismissal. You need to determine which is appropriate and act promptly:

Summary dismissal is justified.
Dismissal with notice is justified, but not summary dismissal.
Dismissal is not justified but a warning/reprimand in writing is justified.
There is no cause for dismissal and an apology is due to the employee.

8. Issue warning letters and keep copies and follow-up

Try counselling and guidance to improve the performance. If this doesn't work you must express your concerns in writing. If you don't record your concerns then it is difficult to complain if the problem occurs again.

It is advisable to give two warning letters plus a final warning letter - if there is no improvement then the letter of dismissal is the final step. Make sure you've made genuine efforts to improve the employee's performance in the areas outlined in the letters.

Avoid relying on verbal/oral warnings. It’s easy to forget or leave out important issues when giving a verbal warning, or for the message to be misinterpreted by the employee.

As an employer you are expected to genuinely attempt to improve, through counselling and assistance, the performance of an employee who is subject to a warning. A considered approach from the employee and a proper monitoring of the performance of the employee by the employer would be expected.

9. Give the employee a chance to state his/her case

Federal law requires this. Think about dismissal as a courtroom situation where proceedings must be fairly conducted and must be seen to be so. The employer puts forward the reasons for dismissal and the employee has a chance to respond. This should happen at each stage of the disciplinary process leading to dismissal (if that is where it leads.)

Reprinted with permission of NSW Business Chamber. For more information about this article or NSW Business Chamber, its products, services and membership, please call 13 26 96 or visit the web site: www.nswbusinesschamber.com.au
First published: 17 February 2003.
Last updated: 8 December 2004.