Top 3 tips for dismissing problem staff in a fair way

As specialists in employment law, O’Connell Group keeps a close eye on decisions from the Fair Work Commission (FWC) and other tribunals needing to review the termination of staff by their employers. While dismissing staff who have misbehaved or otherwise caused problems may need to be done quickly, doing so in a way that avoids rash and/or emotional behaviour will better ensure your company is not called to justify its decision to external bodies. Furthermore, dismissing problem staff in a manner that is demonstrably fair will not only reduce the risk of having a disgruntled ex-employee talking to your clients or competitors, but also provide evidence to your remaining staff of your willingness to deal fairly with all employees, even those causing problems. Read more for our Top 3 tips.

Top Tip 1 – Always stick to your company’s procedures for dealing with misconduct.

Taking shortcuts with your own policies or procedures will lead to trouble. Tribunals such as the FWC will latch onto any such shortcuts or non-compliances to justify reinstatement or payment of compensation, despite the misconduct of the employee concerned.

Top Tip 2 – Make sure you have conducted procedurally fair enquiries into the alleged misconduct

Being frustrated with the performance or attitude of a problem employee and then terminating their service in frustration without firm evidence to support your decision, or worse, for a false reason such as performance difficulties or an unsubstantiated redundancy, will invariably lead to problems.

Avoid problems by having an impartial person, internal or external to your organisation, conduct an investigation into the allegations in an independent and procedurally fair way – and then base your termination decision on these enquiries.

Top Tip 3 – Treat your misbehaving employee with respect

Yelling at your problem employee, refusing to let them provide a response to the allegations against them or having security staff march them out the door in front of other staff are sure ways of humiliating an employee. Not only will this increase the risk of them making a legal claim against you, but it will also result in them becoming more likely to take revenge against your company. Avoid these unnecessary problems by acting in a respectful manner by:

  • holding meetings in a confidential place rather than in sight of other staff;

  • allowing the employee to leave in a dignified manner, and come back after hours to pick up personal possessions;

  • speaking and acting in a respectful manner and not shouting, pointing fingers or standing over an employee.

Additional Tip – Not all staff should be treated the same way

When making decisions on whether or not to terminate a problem employee, keep in mind that you should weigh the seriousness of the misconduct against the employee’s length of service in particular, as well as other personal circumstances. Therefore, while a minor act of misconduct could very well justify the termination of an employee during their probation period, such drastic action against an employee with over 5 years’ service would be problematic. Furthermore, always check an employee’s history of conduct, somebody with many years unblemished service would probably deserve a second (and final) chance whereas a history of written warnings would justify a termination for even a final, yet minor, breach of misconduct.

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Graham Evans is the Managing Partner of O'Connell The Employment Law Specialists, a Sydney-based employment law firm. He has over 20 years' experience in assisting employers in dealing with complex issues within their workplace.

EMAIL: graham@oconnellgroup.com.au

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