Separation - Dismissal
Purpose
This policy is intended to ensure that all employees are treated fairly and with due process in cases of dismissal and that all relevant documents are completed, all requirements met and entitlements paid correctly.
From time to time [enter-your-company-name-here] may have cause to initiate the dismissal of an employee due to unacceptable performance or behaviour.
[enter-your-company-name-here] is obliged to meet certain requirements in respect to termination of an employment contract. These requirements are prescribed by relevant legislation and community expectations, and relate to notification, notice periods, process and reasoning.
Policy
[enter-your-company-name-here] will ensure that all employees are made aware of and fully understand their expectations in regard to work performance and standards of behaviour.
Where employees fail to meet these expectations or standards, they will be provided with every opportunity to improve. In cases involving serious or willful misconduct, that opportunity may be inappropriate.
In any dismissal case, [enter-your-company-name-here] will ensure that all entitlements are met and employees are treated fairly, equitably and with dignity during the investigative process and possible termination.
The responsibility for dismissal action will remain with the Manager. Consultation with the Human Resources Department is mandatory prior to any dismissal action being taken.
Definitions
Dismissal means a cessation of the employee’s contract of employment at [enter-your-company-name-here]’s initiative. It is for genuine reasons, usually relating to unacceptable performance or behaviour, and is always subject to due process being followed.
Summary Dismissal means a dismissal that, due to the nature of the issue, is immediate and not associated with a notice period.
Notice period means the amount of time required to be given in advance of a dismissal taking effect. In cases of dismissal, it is usual practice to make payment in lieu of the notice period being worked.
Fraud is criminal deception, a dishonest act or misrepresentation by the employee to gain unjust advantage.
Responsibilities
It is the responsibility of Management to ensure that:
- all required documentation is completed to ensure the employee receives the correct entitlements
- the employee is treated fairly during any investigation and subsequent dismissal
- all company property is accounted for at the time of dismissal
It is the responsibility of the Human Resources Department to ensure that:
- all cases of dismissal follow full and detailed investigation and that decisions made are based on all relevant facts
- all dismissal cases follow procedural fairness and the employee is given every opportunity to present their explanation
- all documentation is completed to ensure terminated employees receive their correct entitlements as soon as possible after the termination has taken place
Procedure
Consideration of a Dismissal
If a Manager considers that dismissal of an employee may be necessary for reasons of performance or behavioural issues, they should contact the Human Resources Department immediately.
The Manager and the Human Resources Department will review the situation to ensure that all facts have been considered and the employee has been provided with procedural fairness. In general terms
Managers should ensure that they:
- establish performance criteria
- inform the employee of any poor performance
- invite the employee to respond
- agreed on a plan to remedy the poor performance
- provide the employee with an opportunity to improve (specify the timeframe)
- identify the consequences of continued poor performance
- repeated the above process at least twice; and
- if the poor performance continues, terminate with appropriate notice (or pay in lieu), plus any accrued entitlements.
Summary Dismissals
Summary dismissals are only made for serious and willful misconduct, including serious neglect of duty and serious inefficiency.
Acts of misconduct may include, but are not limited to:
- willful disobedience
- insubordination
- drunkenness
- sleeping on the job
- insulting words
- fighting
- abusive language
- violence
- failure to observe safety rules
- insolence
- concealment of a material fact on engagement
- obscenity
- dishonesty in the course of the employment or conviction or an offence which renders the employee completely unfit for the work.
It is stressed that each case must be considered on its own merits, as a question of degree would always be involved. The tests to be applied would vary with the nature of the business and the position held by the employee. Please see Appendix A for further information on what could justify summary dismissal.
Unless the circumstances are absolutely clear and the misconduct is of a major nature, Managers are advised that in the first instance an immediate suspension from duty is the most appropriate step upon observation of an apparently dismissible offence.
A suspension enables the facts to be gathered, advice to be taken, union officers to be informed (if applicable), if appropriate, and explanations invited from the employee.
Managers who condone breaches of the law such as theft of an item or cash from the Company, whether it be on grounds of compassion or some other reason, may be charged as being an accomplice to the crime. They may also be disciplined, including termination of employment, for failure to conduct their managerial duties appropriately.
When implementing a dismissal decision, it is essential that two responsible members of staff be present, one to act as a witness to the actual dismissal and the other to carry out the dismissal. It is important that the reason for instant dismissal, in the terms of the appropriate Award or Act, be clearly conveyed to the employee and recorded on the employee’s Personnel File.
Dismissal for Unsatisfactory Performance
Where, over a period of time, an employee has failed to achieve the standards set by the Company or has acted in a manner that is contrary to the required codes of conduct, he or she should be advised of the Company’s requirements in these matters.
In order to maximise the potential of employees it is important to provide feedback on the way they are undertaking their tasks, to coach them to achieve better performance on the job and to counsel them when problems occur.
Managers must have completed the process outlined in the Performance Management policy before they are able to undertake any dismissal action.
Documentation
The Human Resources Department will prepare a Certificate of Service, a Statement of Termination Entitlements, and a letter outlining the reasons for the dismissal (this will be tailored to meet the individual circumstances of the situation).
As a rule, written references are not to be given to employees leaving [enter-your-company-name-here]. However, a Certificate of Service may be given on request. A copy of a Certificate of Service should be included in the employee’s personal file. A draft Certificate of Service is attached as Appendix B.
Termination Payments
The Human Resources department will ensure that Payroll calculates all entitlements, and where possible payment will be prepared for the dismissal interview. In most cases it is expected that the payment will be processed after the dismissal has occurred.
Payment on termination will be in accordance with the terms of the individual’s contract of employment. In the case of employees covered by an Award, provisions of the appropriate Award will apply.
Dismissal Interview
The Manager shall arrange for a dismissal interview. At interview, the Manager will formally dismiss the employee; providing full reasons for the decision.
During the dismissal interview, the Manager shall recover all company property. The Manager and the employee shall complete a Termination Checklist detailing all company property to be returned and other internal issues to be completed.
Upon satisfactory completion of the Termination Checklist, the Manager will pass to the employee the termination letter. It is the responsibility of the Manager to ensure that all company property has been returned before the employee receives their final payment.
Depending on the circumstances, the employee should be escorted back to their workstation to retrieve any personal property; they should then be escorted from the premises. The Manager shall be aware that this is a difficult process for the dismissed employee and should be done with as much dignity as possible. It is usually not advisable for the employee to engage in conversation or ‘goodbyes’ with colleagues.
All final documentation must be returned to the Human Resources Department for filing.
Unfair Dismissal
Procedural Fairness
A termination must be procedurally fair. Fairness is determined by the process followed prior to making a decision to terminate employment. Once again, Managers should ensure that they follow the Managing Performance document.
Substantive Fairness
A termination must also be substantively fair. This means that there was a good, lawful reason for the dismissal; for example, assault, theft, or drunkenness where the matter has been fully investigated. A Dismissal Checklist has been provided in Appendix C to assist in the preparation for dismissal or potential dismissal of an employee. Utilising the checklist will not prevent an employee making application for re-instatement or for compensation for an unfair/unlawful dismissal but it will enhance the Organisation’s ability to successfully defend such an allegation.
Fraudulent Practices to be treated as Misconduct
Employees are strongly advised not to place themselves in a situation or assist in any way in practices that are fraudulent or involve the theft of monies, property, stock, etc. Such matters will be treated as Misconduct resulting in instant dismissal and will necessitate the matter being placed in the hands of the Police for appropriate action. All employees are advised to report incidents or suspicions of Fraud/Theft to the CEO.
Discriminatory Dismissal
The Federal Industrial Relations Court has jurisdiction to determine claims of discriminatory dismissal involving a breach of relevant anti-discrimination requirements. It is unlawful to discriminate on the grounds of sex, race, marital status, physical or mental disability, or political or religious beliefs. Refer to the Equal Employment Opportunity and Discrimination & Harassment policies.