When you own a small business and hire employees, you may wonder whether firing staff without warning is permitted. While it’s tricky, it’s important to understand your legal responsibilities before making any decisions. In Australia, strict guidelines around employee dismissals exist, and not following them correctly can lead to serious consequences, including unfair dismissal claims.
In this blog article, we’ll dive into whether you can fire someone without warning, the legal circumstances where instant dismissal is allowed, and the best practices to follow. We’ll also hear from Yvette Stewart, an HR expert from Kelly+Partners, who will provide insight into handling employee terminations correctly.
Employee dismissal without warning: What you need to know
Under Australian law, the dismissal of employees without giving them any prior warning is possible, but only in certain situations. If you want to avoid any issues down the road, you need to know when and how to do it legally.
What is “Just Cause” dismissal?
An employer can fire an employee without warning if there is “just cause.” This means the employee has committed a serious breach of conduct or done something that makes their continued employment impossible.
The following are some examples of just cause:
- Theft: If an employee is caught stealing from the business, it is grounds for instant dismissal.
- Violence or assault: Physical violence or threats made towards other employees or customers.
- Serious misconduct: This can include actions such as drug or alcohol abuse during work hours, sexual harassment, breaching safety rules, or gross negligence.
These offences are serious enough that an employer may be justified in firing the employee on the spot without any previous warnings. In any case, it’s always a good idea to consult a legal expert to make sure everything is done correctly.
Performance-based dismissal: Is a warning necessary?
It is not true that all employment terminations are caused by serious misconduct. Sometimes, an employee is simply not performing their job well, and you might feel it’s time to let them go. But can you do this without a warning?
The answer is: not usually. If poor performance is the reason for dismissal, employers are generally expected to give the employee a chance to improve. This means:
- Providing feedback on where the employee is falling short.
- Offering training or support to help them meet expectations.
- Documenting the process to show that you’ve given the employee a fair opportunity to improve.
If, after all these steps, the employee’s performance still hasn’t improved, dismissal may be justified. Sometimes, skipping this process may result in an unfair dismissal claim.
Example of instant termination of employment
Let’s say you own a small business and have an employee, Sarah, who has been consistently late to work and missing deadlines. Over the past few months, you’ve given her several verbal warnings, and she still hasn’t improved. At this point, you might consider firing her.
You could run into trouble if you haven’t documented her performance issues or given her a formal written warning. Under Australian law, employees are usually entitled to warnings and the opportunity to improve before they can be dismissed for poor performance.
However, if Sarah committed a serious breach, such as lying about work hours on her timesheet or engaging in misconduct, instant dismissal could be considered reasonable.
Consultation with an HR specialist: Yvette Stewart from Kelly+Partners
To help employers navigate these tricky waters, we’ve partnered with HR expert Yvette Stewart from Kelly+Partners. Yvette has over 16 years of experience in workplace relations and Fair Work compliance and provides businesses with tailored HR advice.
Yvette’s expertise in HR ensures that businesses stay compliant with Fair Work regulations, which are designed to protect both the employer and the employee. Whether managing a small team or a larger workforce, consulting with an HR specialist like Yvette can help you handle terminations effectively and legally soundly.
Here’s what Yvette had to say about handling dismissals:
“It’s always a tough situation when you need to let someone go, but it’s critical to follow the right process to avoid legal backlash. For serious misconduct, immediate dismissal might be necessary, but in most cases, especially performance-related dismissals, providing clear feedback and documentation is key.”
For more guidance on employment law and workplace relations, contact Yvette Stewart at Kelly+Partners. She offers HR consulting services, including advice on performance management, workplace safety, and employee termination.
Best practices for dismissing an employee
If you find yourself in a situation where you need to dismiss an employee, here are some workforce management tips to ensure you’re following best practices when firing an employee:
1. Document everything
Always keep detailed records of any performance issues, misconduct, and the actions you’ve taken to address them. This documentation will be essential if you need to defend your decision later.
2. Give clear warnings (when necessary)
If the dismissal is performance-related, give the employee clear, written warnings. Make sure the employee understands where they are falling short and what steps they need to take to improve. This can include having formal meetings always ensuring they are permitted to bring a support person, setting clear goals, and providing deadlines for improvement. Written warnings are also crucial to show that you’ve allowed the employee to meet expectations.
3. Follow Fair Work guidelines
In Australia, the Fair Work Commission sets clear rules on unfair dismissal. Make sure you are familiar with these guidelines and adhere to them. The Fair Work Ombudsman website provides detailed information on dismissal processes, including what qualifies as unfair dismissal and how to handle termination properly.
4. Consult with HR or legal experts
Before making any final decisions, it’s always a good idea to consult with an HR professional or legal expert, especially if the situation is complex. They can help ensure you follow the right procedures and minimise the risk of an unfair dismissal claim.
5. Handle the dismissal professionally
If you decide to dismiss the employee, do so in a private and respectful manner. Provide them with a formal letter of termination outlining the reasons for their dismissal and any entitlements (such as final pay and accrued leave). If possible, offer support like outplacement services to help them transition.
6. Offer the right notice period
In most cases, even if the employee is being dismissed, they are entitled to notice or pay in lieu of notice. The required notice period will vary depending on how long the employee has worked for you. For example, employees who have worked for less than a year usually require one week’s notice, while those who have been with you for several years might require more.
7. Check for special protections
Some employees are entitled to special protections from dismissal, such as those on parental leave or those who have filed a complaint about workplace rights. Be cautious when handling these situations to avoid unlawful dismissal claims.
Can you fire an employee on probation without warning?
Yes, in most cases, employees on probation can be dismissed without going through the full performance management process. However, even during probation, it’s still best to give the employee feedback and document any issues. While they may not have access to unfair dismissal claims, they can still lodge claims related to other matters, such as discrimination or unlawful termination, so it’s important to act fairly.
The importance of a probation period
Under staff management best practices, a probation period gives the employer and employee time to assess whether the role fits. If performance issues arise during probation, you can let the employee go more easily than if they were a permanent employee. However, handling dismissals professionally and in line with Fair Work guidelines is still crucial.
Wrapping up
While it is possible to fire an employee without warning in certain situations, such as serious misconduct, it’s essential to be cautious and follow the correct process. For performance-related issues, clear feedback, warnings, and an opportunity to improve are often required by law.
Dismissals should always be handled carefully, and consulting with an HR or legal expert can help you avoid costly mistakes. By understanding your legal obligations and following best practices, you can minimise the risk of unfair dismissal claims and maintain a positive workplace environment.
If you’re unsure about handling a dismissal or need guidance, professionals like Yvette Stewart from Kelly+Partners can help you make the right decisions.
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