Biggest Mistakes When Terminating an Employee
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Are you considering dismissing an employee?
Part of what we are called upon to do every day is provide advice regarding an employer’s risks when terminating an employee’s employment.
We have seen countless scenarios where terminations have gone wrong and have resulted in legal claims against the employer. In this video, I thought I would share with you the 3 biggest mistakes we see employer’s make:
Number 1 - Treating conduct as serious misconduct when it does not meet the serious misconduct threshold. Too often we have employers come to us after a termination and explain to us that they have dismissed an employee for serious misconduct, when the conduct clearly does not meet the serious misconduct threshold. Case law coming out of the Fair Work Commission has shown that the threshold for establishing serious misconduct is very high. Generally, serious misconduct relates to criminal-level conduct like theft, fraud, assault, and serious workplace bullying. Serious breaches of workplace health and safety and wilful negligence will sometimes meet the threshold, but the wilful nature of the conduct becomes very important in those situations. Employer’s should always seek advice before dismissing an employee for serious misconduct.
Number 2 - The second biggest mistake we see employees make is relying on verbal warnings as a basis to terminate an employee’s employment for poor performance or misconduct. Whilst verbal warnings can be relied upon, they are never as powerful in litigation as a proper written formal warning. Having a properly documented history of warnings and, in particular, a final warning, is very important to improving your prospects of defending an unfair dismissal claim.
That then takes us to the third biggest mistake, and that is that many employees do not give a proper final warning before terminating for performance or conduct reasons. A final warning is something that cannot be sugar coated. A proper final warning must make it very clear to the employee that if they do not improve their performance or conduct, then their employment will be terminated. Without a proper final warning, the employer runs the risk of having an unsuccessful defence to an Unfair Dismissal Claim.
Before terminating an employee’s employment, we strongly recommend speaking to one of our experienced employment lawyers, so that we can advise you of your risks and guide you through a fair procedure. A conversation with Aitken Legal before proceeding with the dismissal, can save you a costly claim after the event.
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