One of the things all employers need to remember under the current legislation is that no matter how well you manage the termination of a worker you cannot deprive that worker of the right to take an unfair dismissal (UFD) against you if – in the case of Federal employers – they have been employed for the applicable period of time, the State system has even less protection against unfair dismissal and in both jurisdictions the process is very similar.
Even under the most amicable of separations we have clients who receive UFD applications against them in Fair Work Australia because – in so many cases – the affable ex employee to your face is a very different animal once they are cut loose from your employ.
Remember that at the end of the day it’s all about ‘process’ and paperwork. You have to be able to clearly demonstrate that you have dotted your I’s and crossed your T’s if you are going to build an effective case to refute these sorts of claims. There are examples every day of businesses – even with large HR Departments – who get it nearly right but make costly errors in process resulting, in some cases, with large payments to settle matters.
One of the first things that so many employers utilise poorly is the statutory period of time you have when employment commences, when you can terminate without fear or favour simply because the employee has no right to bring a UFD against your business. By now you should know that this is 12 months for a small business and 6 months for all other businesses – remember a ‘small’ business is one with less than 15 or less employees more than 15 the legislation treats you in a different way.
Too often the duties of a position are either poorly specified or not specified at all with an employee except in the vaguest terms – whilst this may not be an issue when things are going smoothly the absence of these relatively simple documents can become a real can of worms when performance and disciplinary issues raise their heads – as they do in all businesses from time to time.
So…….what are some ground rules?
- Utilise the first six and 12 months to evaluate an employee’s performance and DON’T leave it to the last minute
- Have a Job Description Form (JDF) or Duty Statement that defines the role and responsibilities
- Meet and discuss employee performance – even a simple chat over a coffee – to celebrate the positives DON’T just appraise when there’s an issue
- MAKE SURE you follow a proper process and keep notes of all meeting held with the worker
- DO give employees a timeline to improve and spell out WHAT they have to do to attain a satisfactory standard
- DON’T address these matters simply on a verbal basis when there are issues – the ‘have a chat’ is a waste of your time and theirs
- DO have a disciplinary policy and Code of Conduct you can rely on
- MAKE SURE your staff have read and understood your policies and performance expectations
- DON’T play the game of ‘guess what’s in my head’ when it comes to duties and responsibilities, unless you potentially want to fork out big dollars when a dispute is on foot.
Confused? – make sure you utilise your membership to get advice and support when you need it.