Common areas the Constructive Workplace Solutions team provides guidance and support on are performance management, termination and redundancies. There are often myths about these topics in the industry, many of which are not technically correct.
When considering whether it is appropriate to terminate an employee, each circumstance should be assessed individually and a number of factors should be taken into consideration. We recommend checking in with us prior to termination, given the risks associated with unfair or unlawful termination claims.
Some common myths we hear from members are outlined below:
I have to provide three warnings before terminating my employee
There is no legislative requirement to provide a certain number of written warnings before dismissing an employee. However, dismissals have been considered unfair where an employee has not had an opportunity to respond to performance concerns or to improve their performance over a reasonable period of time.
Therefore, warnings should identify the aspect of the employee’s performance which is of concern and should make it clear that the employee’s employment is at risk unless performance improves. The period of time between the warning being issued and the dismissal should give the employee an opportunity to try and improve.
While three warnings is not necessarily required, the Commission has deemed dismissals unfair in cases where no warnings are provided, where warnings are inconsistently applied, or where procedural steps in an employer’s enterprise agreement or policies are not followed.
We therefore recommend that the amount of warnings provided should be proportionate to the behaviour/performance of concern, and to apply this consistently across your business. You should also allow employees an opportunity to respond prior to making the decision to issue a warning.
I can terminate for any reason during an employee’s probationary period
The Fair Work Act 2009 states that employers cannot terminate employees for any of the following unlawful reasons:
- temporary absence from work because of illness or injury
- union membership/non-union membership or participation in union activities
- seeking office as, or acting or having acted in the capacity of, an employee representative
- the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities
- any of the discriminatory terms listed under section 153 of the Act (e.g.: race, sexual orientation, age)
- absence from work during parental leave
- reasonable temporary absence from work for the purpose of engaging in a voluntary emergency management activity
Employees cannot be dismissed for having or exercising a workplace right, such as making a complaint or inquiry about his or her employment.
Irrespective of probationary periods, an employee dismissed for one of the above reasons may lodge an unlawful termination or general protections claim with the Fair Work Commission.
I can withhold pay if an employee fails to provide notice when they resign
You may only withhold payment from an employee if the award or registered agreement covering his or her employment allows you to do this. For example, the Electrical, Electronic and Communications Award 2010 allows employers to withhold up to one week of wages from an employee who does not provide the required period of notice, so long as that employee is at least 18 years old.
Leave loading is not payable on unused annual leave
If you normally pay leave loading when an employee takes a period of annual leave, this loading must also be applied to any period of untaken leave on termination.
I can dispose of employment records now that the employee has left the company
You must keep employment records required under the Fair Work Regulations 2009 for 7 years.
If you have any others myths that you’d like us to bust, or you would like to consult about a topic you can reach us at info@portal.businesssolutionshub.com.au or via our Contact Us page.
