Dismissal and Termination

Dismissal and termination

Many industrial instruments (awards and agreements) contain provisions relating to the termination of employment. There are also termination of employment provisions in Commonwealth and state or territory workplace relations legislation.

An individual can face termination of employment, or job loss, for one of many reasons. The most drastic termination of employment is involuntary termination, in its most severe form known as "firing" or "sacking". A less severe form is to be laid off or made redundant, which is usually not strictly related to personal performance but economic cycles or the company's need to restructure itself.

In a postmodern risk economy, such as that of the United States, a large proportion of workers will be laid off at some time in their life, and often not for reasons related to performance or ethics. In many countries, in particular in social democracies as found in western Europe, firing an employee is expensive and risky in that firings require extensive documentation (in the event of a wrongful-termination lawsuit), and because fired employees may sue their former employers, disclose trade secrets to competitors, expose illegal practices or become extremely violent. Finally, in the United States, unemployment benefits are financed by companies, and a firm's unemployment costs increase with each worker laid off or fired. Depending on the circumstances and company policy, a fired employee may or may not be entitled to a severance package or unemployment benefits.

In some cases, the firing of an employee is a discriminatory act. Although an employer may often claim the dismissal was for "just cause," these discriminatory acts are often because of the employee's physical or mental disability, or perhaps his/her age, race, gender, HIV status or sexual orientation. Other unjust firings may result from a workplace manager or supervisor wanting to retaliate against an employee. Often, this is because the worker reported wrongdoing (often, but not always sexual harassment or other misconduct) on the part of the supervisor.

Such terminations are usually illegal. Many successful lawsuits have resulted from discriminatory or retalitory termination. Discriminatory or retalitory termination by a supervisor can take the form of administrative process. In this form the rules of the instituton are used as the basis for termination. For example, if a place of employment has a rule that prohibits personal phone calls, receiving or making personal calls can be the grounds for termination even though it may be a common practice within the organzation.

There are several different aspects of dismissal and termination to consider, including:

Redundancy

Redundancy is when employment is terminated because the employer no longer needs the job in question to be performed. Many industrial instruments prescribe minimum notice periods and minimum severance payments for employees who are made redundant—these vary depending on the employee’s length of service. Commonwealth legislation also contains minimum notice periods for termination of employment by an employer.

Poor work performance

Poor work performance includes (but is not limited to) a poor attitude towards co-workers and the public, failure to complete tasks in a realistic timeframe, failure to meet agreed goals or outcomes or an aversion towards learning new skills.

Each employer has a different approach to dealing with employees they perceive to be poor performers. Some industrial instruments set out the procedure an employer must follow when dealing with staff members who are not performing to the required standard.

Generally, employers must discuss the issue with the employee and set out a procedure for corrective action, which may include training to improve the employee’s performance.
Usually it is only after this step has been taken, and the employee is still found to be below accepted standards, that the employer will move towards termination.

Serious misconduct

Serious misconduct includes (but is not limited to) theft, assault, taking illegal drugs, intoxication during working hours, refusal to carry out reasonable instructions, and anti-social behaviour threatening the health and safety of a person, or the reputation or viability of the employer.
When serious misconduct is proven, the employer may dismiss the employee without notice.

Notice requirements

It is unlawful for an employer to terminate a person’s employment without giving the employee concerned a minimum period of notice of termination established by federal law (or relevant industrial instrument), or pay in lieu of notice.
However, notice (or pay in lieu of notice) is not required in cases of serious misconduct.
Depending on the relevant law or industrial instrument, other categories of employees may also be excluded from the minimum notice periods.

Unlawful termination

Under Commonwealth legislation it is unlawful to terminate a person’s employment for the following reasons, or to include one of these reasons as a basis for termination:

temporary absence from work because of illness or injury

trade union membership or participation in trade union activities

non-membership of a trade union

seeking office as, or acting as, a representative of employees

filing a complaint, or participating in proceedings, against an employer, involving alleged breaches of legislation

race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction, or social origin. However, it is not unlawful to terminate an employee for one of those reasons if the reason is based on the inherent requirements of the job, or if the discrimination is against a member of staff of a religious institution and it is done in good faith and because of the teaching or belief requirements of that institution.

refusing to negotiate, sign, vary or terminate an Australian workplace agreement

being absent from work on maternity leave or other parental leave

Unfair dismissal

An unfair dismissal occurs when an employee’s termination is ‘harsh, unjust or unreasonable’. In determining whether this has been the case, a number of factors are taken into account, including:

whether there was a valid reason for the termination

whether the employee was notified of that reason and given an opportunity to respond

if the termination related to unsatisfactory performance by the employee, whether the

employee had previously been warned about that unsatisfactory performance

the degree to which the size of the employer’s business, or the absence of dedicated human resource management specialists, may have had an impact on the termination procedures

any other relevant matters.

temporary absence from work to participate in voluntary emergency management activities.