Your employee may make an unlawful termination application to the Commission if they believe that the termination was in contravention of section 772(1) of the Australian Fair Work Act. Non-national system employees may be eligible to make an application in relation to their termination under local state laws, depending on the circumstances of their case. This is an area of company law you do not want to discover on a trial and error basis, it is costly, time consuming and seldom ever worthwhile even if your employee’s assertions are eventually dismissed!Contact an HR specialist who can manage their departure tactfully and in compliance with regulations and even utilise these usually negative circumstances to actually motivate your other employees. Their understanding of the circumstances and resulting insights into your company’s culture will likely even provide them with the ability to recruit a perfect replacement.I recommend that you contact Annette Dixon principal at End2end Business Solutions http://www.end2endbusinesssolutions.com.au/. Explain your circumstances then you can be confident that you are receiving exactly the appropriate advice.

Hi there

It is possible to terminate an employee for what you have mentioned, with evidence and by applying procedural fairness. I get frustrated with the misconception that it is difficult to terminate an employee, when it is in fact a simple process if you are compliant, non-discriminatory, fair and reasonable, and handle it with honesty and dignity. Yes, it can take time and it is stressful, but it can be done. I have assisted managers with terminations for more than 15 years and I'm proud to say not one of them have ended up in a Fair Work Claim and I strongly believe this is due to the way it was handled.

There are certain things you need to be aware of in terms of compliance (e.g. industrial instrument provisions, unfair and unlawful discrimination grounds, and your contracts and policies). My business is Harland Hansen HR Specialists, and we can help you achieve the outcome you need. We exist to support SMEs realise their vision through providing proactive and no nonsense HR solutions, including termination. If you would like to participate in a complimentary 30 minute obligation free discussion, please get in touch via our website. You will also see we have a provision of services for termination under people management/termination.

In the meantime, good luck, and I hope to hear from you soon.

Many thanks

Susan Carson

We have used this company and recommended them to our small businesss clients where appropriate to make sure all your ducks line up and nothing comes back to bite you.

http://employsure.com.au/

Just follow the fair dismissal code and make sure you document everything. You will find loads of free and useful resources here https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/small-business-and-the-fair-work-act

I don't know about all of the Australian (and local) laws at play. But unless the employment is an "at-will" situation on both sides you should be cautious about immediate termination. Why? It isn't ideal to have to terminate sub par employees but it would be even worse to face litigation over a wrongful termination.

I would first, start documenting all the times they are "tardy". However, the tardiness should only matter if the job is "hourly". If the job is a salaried position, you may want to revisit your policies. Many companies have "flex-time" or "core hours". You should be more focused on their productivity not how often they show up several minutes late.

Also, you would need to have documented proof of theft of company property. Again, coffee pods typically don't cost much (I'm not suggesting taking them is alright) however, playing "big brother" to your employees is probably less than appreciated. Micro-managing never leads to good results in my experience.

Now, if they are talking negative about your business to other employees you need to visit that behavior. First, I would have a 1-on-1 meeting with the individual talking negatively about your business. You need to get to the "why" of that behavior. Are they not being challenged? Do they feel the work they are doing doesn't matter? Try to find what is leading to the negative talk. If there is something you can do to positively make a change so they adjust their work habits and how they talk about the computer great. If not, hopefully by now you've documented everything you need to, if in fact you have to fire them.

A lot of great answers already. Communicate with the employee and discuss the issues as well as documenting all conversation and get evidences to back up your side of the story. Give enough time and chance for employee to change his/her behaviour. Make sure he/she aware that if behavior did not change, he/she will be terminated.

The key is to give the impression to the employee that you are following the law to the letter and that you are going to win if they pursue it further. If they think they will lose the case, they will not bother to file unlawful termination case in the first place.

General rules of procedural fairness

General rules of procedural fairness
An employer is generally required to perform the following steps to ensure that a dismissal is procedurally fair. These will apply whether it is a summary dismissal or a dismissal after warnings.

You must carry out a full investigation into the alleged behaviour.

The employee should be informed about the exact nature of the allegations and, where appropriate, that dismissal is a possible outcome of the disciplinary process.The employee should be given an opportunity to be heard.

The employee should be given the option of having a support person or lawyer present when the hearing takes place.

Unless the conduct in question justifies summary dismissal, the employee must be warned and asked to stop the misconduct or improve the poor performance. In appropriate cases, the employee should be given assistance in this.

An accepted procedure is to first given an oral warning, then a formal written warning, then a final written warning.

The employee should be given the reasons for the decision that you eventually reach. It is advisable that these be given before any dismissal.

However, the employee has the right, within 60 days after the dismissal or after becoming aware of it, to request you to provide a written statement of the reasons; you must then provide the statement within 14 days.A dismissal should be notified in writing.An employee can be suspended on full pay pending the outcome of the disciplinary process.