Employment Law

The Principle of “A Fair Go All Round”

Maitland Mercury

By Kellie Tranter

Unfair dismissal and unfair contracts legislation makes it imperative that the principles of procedural fairness are followed in the termination of all employees.

Although each individual case differs, the procedures that should be adopted when terminating an employee should satisfy the following:

• If the termination is for reasons of poor work performance or unsatisfactory conduct (other than serious misconduct), the employee has been warned and counselled about their poor performance or conduct. The number of “warnings” which should be given to an employee concerning their conduct or performance varies. The number of warnings required need only conform to “custom and practice” in each workplace. There is no legal requirement that there be “three warnings”.
• Where there are allegations against an employee’s conduct or capacity, a reasonable investigation has been conducted concerning the allegations.
• The employee has been presented with the reason for their possible termination and any allegations against them.
• The employee has been interviewed a reasonable time after having been given the reason, and it has been made clear to them in advance that termination is under consideration and that the outcomes of the interview could be termination and that they should have a witness of their choosing present with them at the interview.
• During the interview, the employee must be given a full opportunity to reply to any reasons/accusations put; be heard about any issues the employer should be aware of when deciding whether to dismiss the employee; and be heard about whether they should be terminated, if the employer finds the allegations against the employee are true.
• The employer should be carefully consider all matters raised by the employee at the interview, before making a decision to dismiss the employee.