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Talking all things HR to help you make sure you are dotting the "i"s and crossing the "t"s ensuring you have everything in place to have a thriving business with happy employees.
Hi, I'm Karen Hillen. Welcome to the My HR Partner podcast. We talk about all things HR from recruitment to ending employment. If you'd like support with your HR, check out our website, www. myhrp. com. au.
Hello and welcome to the My HR Partner Podcast. Today we're tackling a bit of a tough topic. Navigating the The termination process.
Now, I'm your host Adam Bell and again with me is Karen Hillen from MyHRPartner. She's ready to guide us through this, oh, this, the ethical considerations and how to just go about it and do it, you know, in, in the right way, when you do come across that, that, Difficult task of having to terminate an employee.
So Karen, welcome to the podcast.
Thank you.
Okay. So let's talk about what an employer should maybe consider when they do get to that unfortunate time of having to terminate. And we know there's a million reasons why that may have happened, and maybe that leads to what you need to consider. But overall, what are the considerations to take into account when you have to do it?
It's probably the worst part of owning a business and having employees when you realize that you've got to move someone on. And it can be for lots of different reasons. So the types of, things I talk to clients about quite often, it'll be redundancy. You know, things aren't going well in the business.
They're quiet. They're running at a loss or they think they're going to get to the point of running at a loss. I'm having a lot of conversations about redundancy lately. So that can be one of the reasons. And it can be really difficult because it's usually something the business owner doesn't want to do, but they've got to the point, they've probably left it way longer.
Then they should have made a decision. So that makes it harder as well. Usually when you're a small business, you like the people that you employ. So that makes it hard to quite often, I'll have people who say, but there's such a nice person. I, you know, what to do. So I think. that's, that's one reason why you would terminate an employee.
And there's a process to follow. Fair Work want to see you consult with people. There's a process to go through and it's important to make sure you follow that process. Not just because it's, The way Fair Work want to see it, but, it's a fair and ethical process to follow. So, you're giving your employee the opportunity to potentially give you ideas that you might not have thought about to avoid a redundancy, for instance.
So I think the main thing when you're looking at redundancy is that you're not using redundancy when it's not a genuine redundancy. So making sure that you're not just trying to use that because you want to get rid of someone you think that's the easiest way to do it. So, you know, thinking of those things as well, because not only is it not the right thing to do, but you may find yourself in trouble in fair work if an employee can prove that it wasn't a genuine redundancy.
So that's one aspect, but also, just thinking about other reasons why you would terminate an employee and that could be within probation. Yep. So, you might have a three month or a six month probation period. There's also, a period that is called the minimum employment period. And that is, 12 months for a small business with less than 15 employees and 12 months for larger businesses.
That's a period of time where an employee can't claim unfair dismissal. But in saying that, again, there's Always want to make sure I'm encouraging people that you follow a fair process. Although you can terminate an employee's employment within that probation period or within the minimum employment period, it still has to be fair and you still have to make sure you follow a proper process.
And the reasons for not continuing somebody's employment after probation. Could be that they haven't been truthful in the process of recruitment when they've told you what they're capable of doing. I see that a lot. But it also could be that the person's just not a good fit for the position. It could be, they're not a good fit.
for the organization. And that could be that there's just a misalignment of values or they don't fit in well with your culture. It could be that, you have realized that the position that you've recruited for is just not what you needed in the business. So you might find that out in, in that period of time where You go, okay, well I've assessed that now and that's not actually the position I need in the business.
Those sorts of things are reasons that you might terminate somebody's employment within the probation period.
Sure.
But it is important to make sure that you're being fair and transparent with whatever process you follow.
Sure. And how does an employer, you know, find out and look into the process that they should follow?
Is that something they do? They get from Fair Work. Is that something you can help with?
Both. Yeah, so all of that information is available from Fair Work.
Sure.
They've got a really good, information about the redundancy process. It's very clear about what they expect to see. I can also help, with advice about those things and guide people in relation to what they need to be aware of.
Some of the other types of termination of employment to think about, will be performance. Sure. So,
and that would be a different process you'd take with that compared to others like redundancy, I'd imagine. Yes. It's a different process depending on why you're terminating.
Yes. Yeah. So with, performance, there's usually a performance management process.
There quite often will be, or there should be a performance improvement plan that's implemented. So you can monitor somebody's improvement. You give them a chance to improve. You have a process of meeting, seeing how they're going with those things. You may need to give a warning at the beginning of the process and then further warnings through the process.
Sometimes people talk about, the three warnings, there's no number, it just has to be a fair process. Sure. So you've got
to demonstrate a fair process. Yeah.
If it's somebody that needs to improve on their skills or, you know, what they're doing in the workplace. That might take a couple of warnings because you're going through a performance improvement plan.
You're assessing that they haven't met the goals. That will be another warning. Every process is going to be slightly different. You just have to work with what the circumstances are. If it's something really serious, and this would be more about behavior and conduct, you might go straight to a first and final warning.
So for instance, if somebody has abused somebody, whether that's a client or another team member or something like that, you might want to go straight to a final warning because it's serious. Is there
anything so serious that you can do instant termination?
There are. Yeah. So serious misconduct. And again, you want to be careful about the process.
You need to get advice. Sometimes you'll, you know, it'll be important to go and get legal advice from an employment lawyer to make sure that you're doing the right thing.. Even if it's something like assault where people have witnessed it and it's, there's no question, or you've caught somebody red handed stealing money, it's still important to make sure that you get some advice and follow a fair process because Although somebody's done something really serious like that, if they go to Fair Work and Fair Work say that the action that you took was harsh or unfair or unjust, you may find yourself in trouble.
I was going to say, because we do hear a bit about unfair dismissal, don't we, and unfair dismissal claims. Do you see much of that in your line of work with, I was going to call them disgruntled employees, but that's unfair to say there can be real reasons why people are, wanting to. Chase down unfair dismissal.
What are the most of the common things you do see in that area?
Yes. There's a few things. And look, you know, I think disgruntled employee, sometimes that is exactly what they are. Sometimes I've seen businesses where they have followed a fair process. They've done everything right. You know, they've gone through, they've documented everything.
They've given people written warnings. They've given the person a chance to bring a support person. They've done everything right. And at the end of that process. They've had to make the decision to terminate someone's employment and it might be a disgruntled employee that will still go to fair work. So sometimes that is the case.
But sometimes it is because a small business hasn't known what to do.
Yeah. Unwittingly again.
Sometimes. They get frustrated. And I've seen situations where a lot of the time the business owner will put up with a lot. They'll give a lot of, informal warnings. They'll tolerate things because it's hard to recruit.
So they might put up with a bit of bad behavior because having not great employees better than not having the employees at all. So there's lots of different circumstances of why people might tolerate things a lot longer. Then they'll get frustrated, they'll snap and they'll just terminate somebody's employment straight away.
You're
fired.
Yes, without getting advice, without understanding what the process is, and then somebody does have a fair, chance of getting their unfair dismissal claim upheld. So it's important to make sure that you do get some advice. Even if you're being frustrated, take a break and think, okay, where can I go?
I'll call Fair Work or call someone like me, talk to your industry association, whoever that might be, to get some advice to, to see what you need to do to make the likelihood of an unfair dismissal claim less likely.
Sure. Okay. Let's say you haven't done that. And you do find yourself, however you're notified, I'm not sure how it happens, that there is an unfair, dismissal claim against you.
What steps should you take at that particular moment in time?
Yeah, so an employee has 21 days to submit an unfair dismissal claim. Once they've done that, then, you will get the advice from Fair Work to say that claim's been received. They'll give you information about, what you need to do.
So they give very good instructions about this is the form you need to fill out to respond. This is the information about, a conciliation meeting that's been scheduled. This is what you have to do to attend. So they'll be very clear about what you need to do next. Some businesses will fill out that form and submit it themselves, and then they'll, you know, go to the conciliation meeting and a lot of the time businesses will settle at that stage.
They might have to pay a couple of extra weeks pay or they'll have to do whatever the ex employee has asked. Sometimes if it's more complex, uh, one of the things I will always suggest is to speak to an employment lawyer.
Sure.
because they're skilled at handling those things, and it will cost you money, but it'll probably save you money in the longer term.
So it's really important to get good advice. And that's something that, I can help to a limited, um, DEGREE that's
what I was going to say. You're not an employment lawyer and you don't give legal advice, but how can you and, you know, as my HR partner support and guide businesses through the termination process?
Yeah. So, so going back to the termination process, that's the, definitely the place where you want to be getting the guidance. So I can help, businesses. Make sure they understand, what the processes are, make sure they have good policies and processes in place. So they're doing everything
to So the structures are there, so that if and when you need, do need to do it, it's all, you know, neat and tidy and following as you keep saying the process.
Yep.
Yeah. And look for me, the processes, the policies, the compliance, I do love them, but they're important and you know, I love them because they're there, they're easy to follow and it makes things easier. It also takes, I think the emotion out of it a lot of the time too. If you know you've got a process to follow, it might be a script that you use to have that meeting about.
unsatisfactory performance or where people need to improve. And business owners, a lot of the time, will find that sort of thing boring. And that's where someone like me can come in because I can help with those sorts of things. I can help you put those policies and processes in place and also help you when you need to actually use them.
So not just having the policies in place, sitting on your intranet or in a folder, but actually making sure that you understand how to use them if and when you need them.
Sure. Fantastic. Karen, look, thanks once again for shedding light on this critical aspect of HR for those needing guidance.
My HR partner is just a consultation away. And as we've talked about in many of our episodes before the structure Karen has with her business, you can just jump on and get a 15 minute call. You don't have to sign up to a, you know, a subscription. They are there. If you've got a bigger business and want all that, but.
Go and visit Karen at my HRP. com. au for more details, but look, stay tuned. Our next episode on what small businesses can offer as employee benefits. Some really. Interesting information coming up there, so stay tuned for that one next month. Goodbye until next time, where we will continue to empower your business through better HR practices delivered by Karen Hillen at my HR partner.
Thanks once again, Karen.
Thanks. Have a great day.