Dismissal from employment

Dismissal is defined as a situation where the employment has been terminated on the employer’s initiative, or where an employee was forced to resign due to the employer’s conduct.

Dismissal is a matter of such importance that it should not be taken lightly. Before dismissing an employee, employers should consider especially the following:

Is it a dismissal under the Fair Work Act?
Is there a valid reason for the dismissal?
Was the employee notified of that reason?
Was the employee given an opportunity to respond?
Was the employee warned about unsatisfactory performance?
In case of a serious misconduct, was a proper investigation conducted?
Do we have all the evidence in case the employee claims unfair or wrongful dismissal?
Is our business considered a small business?

Valid reason

Employers may believe they have a valid reason to terminate employment relationship with an employee. These reasons may relate, for example, to an employee’s capacity to perform the agreed work, or to serious misconduct by the employee. However, such a belief is not enough. Before dismissing an employee, employers should conduct an analysis of whether they actually have a valid reason for dismissal, and whether they have evidence substantiating the valid reason.

Unsatisfactory performance

Unsatisfactory performance relates to employee’s capacity or ability to do their job. Capacity is assessed objectively and includes situations where employees are required to have or maintain a licence, certification or qualification.

In cases where the employee loses their licence or cannot perform the inherent requirements of their job, employers should consider whether the employee can be redeployed into another role. If this is not reasonable, an employer will likely have a valid reason for dismissal.

Prior to any dismissal actions relating to an employee’s ability to do their job, employers should conduct a performance review, warn the employee about unsatisfactory performance, and give them the opportunity to improve or get their licence back.

Serious misconduct and investigation

In case of a serious misconduct, employers should conduct a proper investigation whilst complying with rules of natural justice and procedural fairness. If they wish to rely on the protection of legal professional privilege, employers should brief a solicitor as soon as possible, prior to taking any actions or creating any document. Only that way, any communication and correspondence (including the investigation report) will remain confidential.

Investigations should be conducted as soon as possible and completed in a timely manner. Failure to do so may give rise to claims for workers compensation or unfair dismissal. Excuses, such as insufficient internal resources, would not be accepted.

Constructive dismissal

Constructive dismissal means forced resignation, where an employee has no other choice but to resign. The onus lies with the employee to show constructive dismissal. The employee must prove that their resignation was not voluntary and that it was due to employer’s act or a failure to act.

Generally, employers are free to treat a clear and unambiguous resignation as a valid resignation. In such cases, employees have no right to withdraw their resignation notice (unless agreed otherwise with their employer). However, an exception to this rule exists when an employee resigns ‘in temper or in the heat of the moment or under extreme pressure’. These are referred to as special circumstances and the employer is required to do the following steps:

Follow up with the employee on their resignation, and
Request a verification in order to clarify employee’s true intentions.

Should the employer fail to do so and simply accepts employee’s resignation made ‘in the heat of the moment’, the employer may be subject to an unfair dismissal claims.

For further information, see our article: Can I withdraw my resignation from work?

Are you considering dismissing one of your employees?

We will take you through the process and advise you whether there is a valid reason for the dismissal. We will make sure that you comply with all the rules so that your employee has no grounds for an unfair dismissal claim or general protection claim.

Have you been forced to resign or unfairly dismissed?

Remember that strict time limits apply to make a claim against your employer. If you think you have been unfairly dismissed or forced to resign, do not delay in seeking legal advice. Our employment experts will assess your claim and recommend the best possible solution for you.

What else can we help you with?

Contact our team today to discuss how we can best help you. Elringtons will provide you with expert legal support in all areas of employment, for further information see: