Letting Staff Go

At times it may become apparent that a staff member is not a 'good fit' for you or the team and that you will need to part ways.  Often the person themselves will realise that the arrangement is not working. If you are aware of problems, talk it over with the person concerned. It may help to have someone with you to assist with that conversation.

Working for someone in their home is a different scenario to working for a business.  However, workers have rights and as the employer you have responsibilities to do the right thing by your workers. 

The employment arrangement you have with an individual, either casual or permanent employment or, if they are engaged as a contractor, will affect how this happens.  It is important to remember that casual employees have the same rights and protections with respect to unfair dismissal as full-time and part-time employees.

  • Instant dismissal - typically reserved for behaviour which is categorised as 'serious misconduct'. By definition this includes (but is not necessarily limited to) fraud, theft and assault. 
  • Warnings - written and verbal to staff member that they cannot repeat a behavior. Preferably should also include the likely implications of repeating the stated behaviour, agreed goals and a timeline setting down when performance will be reviewed to determine whether sufficient improvement has been achieved. 
  • Unfair dismissal - generally the method of recourse an employee may pursue if they have served the required "minimum employment period" and are terminated for poor performance.  Unfair dismissal applies what is sometimes referred to as the "harsh, unjust or unreasonable" test as determined by the "criteria for considering harshness" provisions of the Fair Work Act 2009.  In very simple terms, this is the method of recourse most employees will pursue if they feel they should have had more warnings before being dismissed.  
  • General protections - it is important to remember that unfair dismissal is not the only method of recourse an employee can pursue if terminated.  From day one of employment, all employees, including casuals, can access the "general protections" provisions of the Act if they are terminated.  A breach of "general protections" would include (but not be limited to) dismissing an employee for a discriminatory attribute (such as age, race, sex, pregnancy, etc) or because they had a temporary absence due to illness or injury or because they queried their employment conditions etc. 

Mitigate your legal risks by spending some time understanding your obligations as an employer with respect to dismissal and how to terminate employment appropriately.

Who can help?

This is an area in which you need to seek specialist advice because of the potential legal consequences involved.

Your Host Provider may provide support.

Fair Work Ombudsman eg Review the 'Best Practice Guide for Managing Underperformance' and obtain free templates for warning letters. 

Fair Work Commission eg. Find out about which employees can pursue unfair dismissal or lodge a general protections dispute and learn about the Small Business Fair Dismissal Code. 

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