At Workwise we often get comments from members that go something like….’I want to make sure I get the termination process right so I don’t get caught by an unfair dismissal’. The reality however is that you cannot remove an employees right to pursue an unfair dismissal claim if they have served out the required period of employment with the business.1403523333_icon-person-stalker

Too many employers appear to feel constrained and go around in fear of a claim being taken against them – the fact is that there is a risk that this will happen and like all risks these need to be approached logically in order to reduce and manage the risk.

So – in one sense – when it comes to a termination you cannot necessarily avoid an unfair dismissal claim but you can ensure that you have clear processes in place to support your actions. Just because someone has a right to take an action should not be viewed as an impediment to managing that person appropriately and terminating their employment if this is necessary.

The use of ‘probationary’ periods of employment are commonplace with both State and Federal employers but how well do you really utilise this critical period of time and what mechanisms and documentation do you have in place to monitor the performance of new staff? Many employers become victims of their own complacency – rather than being ‘proactive’ they are continually being ‘reactive’ and, in some cases. endlessly repeat the same mistakes over and over.

Rule number one is that you need to ensure that you have the ‘difficult conversations’ when it comes to managing performance in a timely fashion – avoidance of issues in many cases simply leads to an escalation in unwanted behaviour as the failure to act appropriately acts as a way of negatively ‘reinforcing’ an employee, avoidance in fact ’empowers’ the individual to continue. Eventually this can build to such an extent that the worker becomes the dominant ‘force’ in the workplace and disenfranchises the employer altogether – we have seen this happen on numerous occasions. So how do we manage this appropriately? By this I mean not flying off the handle and ranting and raving when the straw finally breaks the camel’s back and ending up in a far worse situation.

Here are some simple tips to adhere to:

  1. Take time to meet with your staff on a regular basis – this does not have to be a formal meeting it could be a regular chat over a coffee but have some specific questions that you ask in relation to their work etc and keep some notes in your diary or day book
  2. Tackle issues early
  3. Be clear and concise about what the ‘issue’ is and have a strategy in mind as to how this can be managed/resolved
  4. LISTEN to your employee and seek their ideas as to how an issue can be resolved – it may be that there are factors that influence matters outside of work
  5. Establish  a clear timeline to tackle matters and seek improvement
  6. Seek the employee’s input and try to reach an agreed response rather than simply telling them how it’s going to be
  7. Be very clear as to what the consequences may be should improvement not be forthcoming
  8. FOLLOW UP in writing to the employee confirming facts/dates/timelines and clarifying the issues discussed
  9. AVOID simply emailing the person about the issue – it’s too easy to read into an email an unintended ‘voice’ and making matters worse –  as human beings we communicate on a whole range of levels using verbal and non verbal cues. If you limit your communications only to the written word you have eliminated 95% + of your ability to get your message across clearly
  10. Call us for advice and support – it’s better to ask first than to jump in and it’s great to be able to bounce ideas around.

Managing these matters firmly and fairly reduces the risk of having a decision made against you and limits the fallout that may occur in terms of penalties and fines – it’s not rocket science but it does require a clear process and the confidence to manage matters appropriately – knowing your rights as a manager or employer and the rights of the employee is important. Remember that you have the right to manage staff but the more ‘tools’ (eg JDF/Policy/Contract documentation) you have in place the better.

Call us for advice and support – we are here to help and support you!!


Workwise Advisory Services are Registered Industrial Agents and licensed under Section 112A of the Industrial Relations Act 1989 to provide advice in relation to employment and workplace matters. Any advice provided by Workwise does not constitute ‘legal opinion’. Clients wishing to access legal opinion and protection under legal privilege should access the services of a legal practitioner. Such services are available through Workwise’s strategic partnership arrangements and attract additional fees and charges prescribed by the legal practice.