The Industrial Relations landscape within Australia is frequently criticised in the Human Resources community for being pro-employee.
Politics plays in every area of the law and Employment Law is certainly no exception.
Many small businesses and even larger businesses with a full complement of a HR team find themselves wondering how to effectively manage out poor performers and keep themselves or their company out of the legal system.
There are many things to consider and here is a quick rundown of the Small Business Fair Dismissal Code that will help keep you and your boss out of the courtroom.
If you’re a small business, read up on the Small Business Dismissal Code. It’s a great resource that will help you ensure you’re following procedure and due process when dismissing an employee.
A few things to consider:
A small business for the purposes of Fair Work Act is based on Head Count not Full-Time Equivalent (FTE) staff. If you have fewer than 15 people working in the business you’re a Small Business Owner.
If you’re unsure about a new employee, don’t ‘let them settle in’ any longer.
Talk to them, highlight the concerns you have with their performance, attitude etc.
Once an employee passes the 12-month mark with you, it’s much more difficult to state that the employee’s conduct or performance is not up to scratch.
If you need to pull someone up on their conduct or performance, you need to follow the process.
This includes formally inviting the employee for a disciplinary meeting or performance discussion, outlining the issues at hand and then allowing the employee the chance to respond.
You need to consider the employee’s response prior to making a decision.
If the issue is a major one you may put the employee on a first and final (written) warning and make it absolutely clear that they risk being dismissed if there is no improvement.
Remember to set a timeline for this improvement! And, if you have a good policy or process to follow it’ll make all the difference.
If an employee is found to have committed serious misconduct (such as stealing, fraud/embezzlement, seriously breaching WHS policies, fighting on-premises etc.) then no final warning may be given.
In this instance, and based on the facts at hand, company policies and the relevant award, an employee may be dismissed without notice (summary dismissal).
Be very careful with summary dismissal, it is always best to have an HR Advisor or external Consultant present in this instance.
Remember, the goal is to get your employees working for you and delivering to the best of their ability. If there is any doubt, talk to them, let them know your concerns and show your support to help them improve their performance.
Finally, check out the Small Business Fair Dismissal Code Checklist for more information.