Termination Talking Points
Sign-up to our Newsletter
Termination of employment is when an employee’s employment with an employer ends, this may be for various reasons; an employee may resign or they can be dismissed by their employer.
Regardless of how the employment ends you as the employer need to be aware of your obligations to the employee, specifically you must be aware of the rules around dismissal, notice and final pay.
Commonwealth workplace laws have rules about terminating employment; these rules establish whether the termination of the employment was unlawful or unfair, what entitlements an employee is owed at the end of their employment and what must be done when an employee is dismissed because of redundancy.
As an employer it is paramount in any business to ensure you follow all processes and procedures to a tee, whether you are a small, medium or large business you are still responsible for following all Commonwealth workplace laws.
Some of the biggest mistakes employers make
When an employees' employment is terminated, you need to ensure that the termination is lawful.
Unlawful or unjust termination may be classified as:
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission may consider an employee has been unfairly dismissed if:
- the person was dismissed
- the dismissal was harsh, unjust or unreasonable
- the dismissal was not a case of genuine redundancy the employee worked for a small business and the dismissal was not done according to the Small Business Fair Dismissal Code
What is harsh, unjust or unreasonable?
The Fair Work Commission will decide if a dismissal is harsh, unjust or unreasonable, and they consider all of the following circumstances:
- was there a valid reason for the dismissal related to the employee’s capacity or conduct
- was the employee notified of that reason and given an opportunity to respond
- if the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable
- whether the employee had been previously warned that their performance was unsatisfactory
- if the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee
- any other matters that the FWC considers relevant.
Who can apply for unfair dismissal?
Employees covered by the national workplace relations system can apply to the Fair Work Commission for unfair dismissal if they have been terminated by their employer, or forced to resign because of something the employer did, and they have worked the minimum employment period.
Minimum Employment period:
- employed in a small business for at least 12 months. (A small business is defined as any business with fewer than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis).
- employed in a larger business for at least 6 months. (If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period).
To be eligible employees must also be:
- covered by an award
- covered by a registered agreement
- have an annual earnings rate which is less than the high-income threshold (from 1 July 2019 this is $148,700). This threshold is indexed each financial year starting on 1 July.
Employees have to apply to the Commission within 21 calendar days of the dismissal taking effect.
Feeling overwhelmed, we don’t blame you?
The world of termination and unfair dismissal is most often a complex and onerous process for employers.
As a majority, employers found by the Fair Work Commission to be in breach or guilty, have done so unwillingly truly believing they had followed all processes correctly. However in the ever-changing landscape of HR, new precedents are being set constantly by the number of cases the Fair Work Commission is ruling on.
Still feeling overwhelmed? Don’t stress this is where the trained and qualified HR Consultants at KLC can assist you and your business. KLC Consultants are trained with up to the minute information on all changes occurring in the world of HR that may affect you and your business.
So if you are unsure don’t hesitate to reach out to KLC today.
Written by Stephanie Berry
Back to Articles