Common firing mistakes include considering if the dismissal is for a valid reason, and if procedural fairness is followed during the termination process, says Patrician Ryan, Principal at The Workplace employment lawyers.
Ryan sat down with HC Online to talk about some of HR’s most common firing mistakes and share her advice on how HR managers can safely navigate the legal minefield.
“Common mistakes made in terminations are failing to consider both the substantive grounds for dismissal (the reason for the dismissal) and to ensure the dismissal is procedurally fair; that is ensure dismissals are both substantively and procedurally fair,” Ryan says.
Common mistakes in terminations for non-performance
- Failing to have performance-managed the employee prior to terminating;
- Not bringing performance issues to the attention of the employee;
- Failing to have provided warnings that further non-performance may result in termination;
- Failing to give the employee an opportunity to respond to allegations of non-performance;
- Failing to give the employee the opportunity to respond to the decision to terminate;
- Failing to keep adequate records to support a history of performance management and warnings given
Mistakes when terminating for misconduct
- Lack of evidence through a poor investigation
- Waiving past misconduct - if an employer knew about instances of past misconduct but did not act at the time, the Fair Work Commission will not find favourably for the employer if they then terminate for the same conduct that was accepted previously. (An issue being argued in the ANZ trader case)
- Inconsistency in the way employees are treated - inconsistent treatment of employees may be considered harsh on the employee who is subject to the more serious disciplinary action. For example, where employees are fighting in the workplace and one employee who was involved in the fight is disciplined but the other is not, this would be considered harsh.
- Lack of procedural fairness:
- Employee denied the opportunity to respond. For example, if an employee is stealing from their employer then there is a substantive reason for them to be dismissed, but if they have not had any opportunity to respond to allegations of stealing then there will be a lack of procedural fairness.
- Lack of procedural fairness during the termination itself includes denying the employee the option to have a support person present at any meetings, or giving the employee lack of notice of the meeting, Ryan says.
Failing to notify the employee of what the meeting is about and who will be present and failure to consider other options to termination such as warning or suspension or demotion will also be considered as lack of procedural fairness.
Ryan says the biggest risk for employers when mistakes are made during termination is an unfair dismissal claim.
“Unfair dismissal claims can be costly, time consuming and a huge distraction,” she says.
As the assessment of unfair dismissal claims is based on whether the termination was harsh, unjust or unreasonable, HR managers who make any of the mistakes set out above could contribute to a finding that an employer’s termination of their employee was harsh, unjust or unreasonable.
Ryan says another notable legal risk is an adverse action claim, where an employee can bring an adverse action claim against the employer when action – including termination – has been taken against them for exercising a workplace right.
“It may arise from a termination if the employee believes that their dismissal was for not for the stated reason, but instead claims it was because of the exercise by the employee or a workplace right, such as making a health and safety complaint or for discriminatory reasons such as taking carer’s leave to care for a child,” Ryan explained.
“Adverse action claims are just one example of why keeping good records is essential,” she says.
However, HR can avoid these legal risks by ensure the above points are considered and addressed, Ryan says.
As most HR professionals know, it's critically important to follow correct termination procedures to minimise the risk of unfair dismissal or adverse action claims. But it seems that the Australian HR profession are still making several errors when it comes to firing staff.