The first step is to put your decision in writing and hold a meeting with the staff member. You should also consider having a third party attend and inviting the staff member to bring a third party too.
Be direct and clear about the timeline leading up to the decision, and what will happen next. You will need to educate yourself on how much notice you will need to provide, although you may have grounds to have the employee leave immediately if they are privy to private information.
Legal expert Peter Vitale says businesses with under 15 employees are protected from some unfair dismissal claims, but there is a checklist you should follow:
• Has the employee been working in the business for over 12 months? If not, they cannot make an unfair dismissal claim.
• Is the dismissal a genuine redundancy? If so, you must cite a clear reason, including the economic downturn, new technology requiring less staff, etc.
• Did the staff member breach policy by committing a crime including theft, fraud or threats of violence?
• Did you dismiss the employee based on any other breach of serious conduct? If so, you must describe exactly how this occurred.
• Did you dismiss an employee because they could not perform their job satisfactorily? If so, did you warn them in writing they were not doing so, and were they given notice to improve?
• How much time was given for them to improve?
• Did you provide the employee with any other types of training? Following this, did their behaviour or performance improve?
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
