Documents relevant todismissal

(a)Terminationpolicy
Drafting a termination policy is not a risk-free exercise. The presence of such a
policy generally imposes additional legal obligations on employers and may CXOSC
them to a breach of contract claim. I however, such a policy may be beneficial to
an employer and will assist in ensuring a best practice approach to termination.
In addition to (or instead of) a termination policy, an employer may wish to develop
guidelines for managers and supervisors to follow in a termination situation. This
document should only be made available to managers, supervisors and HR, and should be
introduced as part of a manager training package, to ensure that managers and supervisors
fully understand their obligations in the termination context.
(b)Writtenwarnings
Contrary to common understanding, there is no strict legal requirement to provide
employees with three written warnings prior to dismissal. While three written warnings
will generally satisfy an employers obligation to provide procedural fairness under the
federal unfair dismissal regime, depending on the circumstances; one written or verbal
warning may suffice. Where an employee is guilty of serious misconduct, he or she may
generally be dismissed without warning.
Where the unfair dismissal regime does not apply (for example, because the employee
has not yet completed the minimum employment period), in the absenceof any
applicableaward,agreement, contractual or policy provision, there is nostrict
requirementto provide anemployeewith proceduralfairness.Accordingly,
anemployer will not be required to provide written warnings in these
circumstances, although warnings are preferable under a best practice approach to
termination.
Following is an example of a written warning for misconduct.
(c)Writtennoticeofdismissal
Where a decision has been made to dismiss an employee, a meeting should be held to
inform the employee of the proposed decision and provide him or her with an opportunity
to respond. If the employee wishes to bring a support person along to the meeting, the
employer should allow this. If, after taking into account the employees response, the
employer decides to proceed with the dismissal, this decision should be conveyed to the
employee either at the meeting or soon after the meeting. Furthermore, the employee
should be provided with written notice confirming the dismissal.
The notice should confirm the reasons for the dismissal (it is important that these are not
discriminatory or in breach of the FW Acts general protections provisions, when the
dismissal is to take effect and how much notice the employee is being given, it should
also detail the employees termination entitlements (these may be set out in a schedule to
the notice). Following is an example of a dismissal notice.
(d)Employmentseparationcertificate
The employment separation certificate is a form used by Centrelink to verify
details of an employees termination. An employer should not falsify or play
down the reasons for dismissal on the certificate in order to assist the employee,
as this could contradict the written reasons for dismissal.
As the certificate itself explains, the certificate is required by Centrelink to enable
a person to claim income support payments. It is used to ensure that only eligible
people get paid a support payment and that they are paid the right amount from the
correct date. An employer must provide an employment separation certificate if
requested by the employee or Centrelink.
Employment separation certificates can be downloaded from Centrelinks website
(see www.cenrreli nk.gov.au).
Author is a employment law writer of Perth, Australia.
http://www.perthemploymentlawyers.com.au/