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Fairness and equity behind dismissal law

DISMISSING an employee is a tough call for businesses of any size. The legislation that determines the rights of employers and employees is not there to be unfair to either side. It’s there to ensure that employees can work in an environment where fairness and equity prevails, and it’s there to ensure that employers maintain good practice in their HR processes.

That’s the key to it all – good practice. It starts with making the best hiring decisions. Put the right people into the right positions and the likelihood of having to fire someone is immediately reduced to a minimal level. So let’s start there.

You set the scene for the employer/employee relationship the minute you decide to go to the market, so remember a few important rules.

Document the job clearly. Be clear about specific duties and the measurable outcomes. Be prepared to give clear answers to any questions the potential employees might have.



Always reference check the person you wish to hire, and when you do, make sure you probe a bit, find out how they behaved on the job, how good their skills were, how they responded to problems, and why they left.

When you’ve found your person, give a letter of offer, with a copy for them to sign, stating terms and conditions, expected outcomes, any probationary period (a good idea) and an attached job description. This constitutes a contract of employment.

Finally, make sure your new employee is properly inducted, made welcome, and given appropriate training.

If you follow these basic steps you’ll minimise the chances of hiring the wrong person. The probationary period, usually three months, gives you a further opportunity to ensure that you and the employee are right for each other.

So what happens when something does go wrong? Firstly, you must be prepared to confront the employee with your concerns at the earliest sign that things aren’t working out. Face up to the issues, discuss possible solutions, give a warning if appropriate, but be positive and constructive. Set a time and date for a further discussion to review progress, perhaps a week later, or possibly a month, depending upon the role. Immediately after such a discussion, document the meeting and give a copy to the employee.

Repeat this process, acknowledging performance improvement where it has occurred, or else give a final and unambiguous warning. Following this, if termination is the only course of action left, prepare properly for the meeting. Document the reasons for termination clearly, give the employee the opportunity to respond, and be able to discharge all administrative matters (termination payment, vehicle and property arrangements etc) on the spot. It is advisable to have a witness at this final meeting.

Don’t forget to document proceedings after every meeting, including this final one. Note time, date and location of meetings, comment on the employee’s reactions, and list all persons present. Keep all meetings formal and in the workplace, remain calm and to the point, and don’t feel you have to apologise for your actions.

Richard Hazlewood is the principal of Exec-Search. He can be contacted via e-mail at Richard@exec-search.com.au or by telephone on 9481 7033.

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