Sacking a worker is never easy but there are ways to avoid an unfair dismissal claim.
You wanted to be the boss. The opportunity to make the creative decisions or push your ideas comes at the cost of having to manage others – and they are probably not as motivated or competent as you.
Whether you are a business owner or a team leader, chances are that you will encounter an employee who is not performing. For the sake of the organisation and for the other employees that are performing their roles successfully the issue must be confronted as soon as possible.
One of the most difficult tasks that an employer or team leader will ever have to do is fire an employee. It is an irksome but inevitable part of creating a functioning organisation.
There is no easy way to go about it. Before you make the cut make sure that you are aware of how to conduct a fair dismissal. Otherwise, it could cost you and your company dearly.
There are things you can do to limit the likelihood of getting to a formal dismissal scenario. Recruitment, professional development and internal mobility are all issues to consider.
Small business owner and writer for the New York Times
, Paul Downs recommends thinking about what would justify firing someone at the time you employ them. 'Before I hire people, I have a clear idea of what I want them to do, how their performance will contribute to my success, and under what circumstances I will be unwilling to continue with their employment. In other words, I define boundaries.'
If you do not train your employees in accordance with your company’s procedures you can be held responsible for their lack of performance. When the time comes and you are disappointed with their actions both the employee and yourself will be accountable. Create a procedures manual so that nobody is left in the dark. This will also save you and the other managers of your business time and patience teaching each individual the right way to operate. Also, create an open environment where questions and enquiries are welcomed.
Retraining or finding a different position for an under-performing employee is kinder and more efficient. A friendly person who isn’t working out in admin might be a boon front of house. Consider the alternatives to firing
Confront the employee immediately and be clear about what they have done – or not done. Miscommunication is one of the leading causes for unfair dismissal cases. Be honest about what you want and what you do not want. You don’t have to be cruel but if you don’t communicate the problem fully you leave yourself open to claims that you acted without justification. In order for any professional relationship to succeed both the employer and the employee must be open and transparent.
Know your rights
The Australian Human Rights Commission's statement on workplace bullying
points out that not everything that an employer does that employees don’t like constitutes bullying. ‘Some practices in the workplace may not seem fair but are not bullying. Your employer is allowed to transfer, demote, discipline, counsel, retrench or sack you (as long as they are acting reasonably),’ the Australian Human Rights Commission states.
Make policies explicit
It is the employer's responsibility to make the employee fully aware of the company’s policies and procedures. The safest way to do this is to prepare a formal document that dictates an agreement between both the employer and employee about what is expected in the workplace and have employees sign it when they take the job. Make sure that the legal document leaves no room for misinterpretation. A recent case featured by Workplace Bulletin
outlines a situation where an employee had been asked when recruited to fill out a form entitled Criminal History and Integrity Screening, which included the following question: ‘Do you or have you associated with person(s) that you knew had criminal convictions other than in the course of carrying out professional duties?’ The employee answered ‘no’, interpreting the term “associates” to mean business associates, not family and friends. When the Northern Territory Correctional Services (NTCS) learned that the employee’s husband had a criminal record and was on parole, it sent her a letter, informing her that her failure to disclose her husband’s status had damaged their relationship of trust and confidence and that her employment may be terminated as a result.
Follow the dismissal procedures to the letter
In the NTCS case the dismissal was deemed unfair by Fair Work Australia
not just because of the misunderstanding. Commissioner David Steel due said the company had not carried out a proper investigation, met with the employee in person to discuss the dismissal or given the employee an opportunity for representation.
Before firing a staff member you will need to familiarise yourself with the correct procedures. The Fair Work Information Statement on Dismissal
There is no room for cutting corners when it comes to firing an employee so make sure that you have done your research prior to the official dismissal.
For some, it will be their first major confrontation with dismissal. This may cause people to act irrationally. Be compassionate in your approach but also firm and professional. Do not fire anyone on a Friday, leaving the person to dwell about it over the weekend. Monday morning is best because the person will have a smoother transition in to the process of looking for another job, which is usually done during the week.
Be honest about the employee's weaknesses and strengths. It is your duty as an employer to tell the employee what they have done wrong so that they do not make the same mistakes in their next workplace.
Be prepared to face the reactions of other staff members
The other staff members in the business will be your harshest critics. In order to maintain their respect and allegiance it is imperative that the dismissal is fair. Make sure that you consider the feelings and perceptions of those who are left behind and that all employees are properly informed about what policies the dismissed employee has neglected. Out of compassion and empathy, the other employees may feel emotionally affected by the dismissal of a peer. Make sure that they are offered closure for this.
Respect the dignity of your fired staff member
Remember as a manager you must lead by example. For the sake of your own conscience, make the employee’s transition as comfortable as possible. Do not let your ego get in the way of what is fair and right.
Sacking is not really a time for a sense of humour, but we have to finish by sharing with you the words of the editor of The Sun
in London, Kelvin MacKenzie, who sacked the astrologer when he found out that the employee was recycling predictions. According to The Times
, MacKenzie sent the astrologer a letter that began: 'As you will no doubt have foreseen...'
Finally, you can try and find alternatives to firing an employee
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