Termination of employment
If your association needs to terminate an employee's employment, it is important to find out what procedures must be followed. It may be advisable to obtain legal advice before terminating an employee's employment.
Employment may end when:
- the work set out in the contract is completed or the time period for the end of the contract is reached.
- either party gives proper notice to terminate the contract.
- a party terminates the contract because the other party breaches the terms of the contract of employment. Whether a particular breach justifies termination will depend on the nature of the breach and the particular circumstances of the case.
There may be situations where the role the person is employed in is no longer required.
State and Commonwealth awards and agreements will often deal with matters concerning redundancy, including issues such as:
- consultation with the employee,
- notice to and consultation with unions,
- redeployment opportunities (providing the employee with another position), and
- redundancy payments and benefits.
Associations should be clear that a position is no longer required before terminating employment by reason of redundancy. If an employee's employment is terminated on grounds of redundancy in circumstances where this is not a genuine reason for the termination, the association may be exposed to a claim of unfair dismissal.
Summary (instant) dismissal
Some contracts of employment make allowance for instant termination of employment (termination without notice) where an employee has been found to have engaged in serious misconduct, for example:
- use of illicit drugs in the workplace;
- criminal conduct, for example, assault; and
- fraudulent conduct.
Any alleged serious misconduct must be investigated thoroughly and fairly, and the allegations substantiated by clear evidence before an association terminates an employee's employment summarily for serious misconduct.
Termination of a contract of employment is unlawful if proper notice is not given or it is terminated for a prohibited reason such as:
- union membership (or non-membership) or reasonable participation in union activities;
- prohibited grounds of discrimination;
- temporary absence because of illness or injury;
- absence during maternity or parental leave; and
- filing a complaint or participating in proceedings against an employer.
There are unfair dismissal laws in both the State and Commonwealth industrial relations systems. The process by which the decision to terminate employment was reached and communicated to the employee must always be fair. Key elements of procedural fairness include:
- notifying the employee of reasons for termination of employment;
- giving the employee an opportunity to respond before any final decision is made;
- if employment is to be terminated for reasons, such as repeated misconduct or poor performance, advising the employee of the issues and giving the employee an opportunity to improve prior to termination (eg. by way of warnings, counselling).
Employees are entitled to be told if their work is not satisfactory, given a chance to change and warned if their performance is still unsatisfactory. It is essential to keep detailed and up-to-date records of these processes as they may be required later to support decisions .