The Fair Dismissal Code provides a simple explanation of when a dismissal will be deemed to be fair by Fair Work Australia. The Code applies to businesses that employ less than 15 employees.
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned beforehand. This warning can be given verbally or preferably in writing. It must be clear when giving the warning that the employee risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning. The employer must also give the employee a reasonable chance to fix the problem. Fixing the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Employers must be able to prove they followed the Code
A small business employer will be required to provide evidence that they followed the Fair Dismissal Code if the employee makes a claim for unfair dismissal to Fair Work Australia. This includes evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
Employee can have someone present at meetings
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.