Meal Five
Meal Five at Meal5

How to dismiss an employee legally?

I have an employee who is always late, talking negatively about my business with other employees in the company,
What steps do I have to take to dismiss an employee?

Top voted answer
Natasha Hawker

Natasha Hawker at

Top 10% Human Resources

Good morning,

You are able to dismiss this employee but not without following a legal due process first which includes having a conversation about your concerns, giving them a opportunity to respond, giving them an opportunity to improve their performance to the required levels and supplying any additional support reasonable to achieve the required performance levels.

This is complex area and getting it wrong exposes you to a fine of up to 6months salary of the employee and / or reinstatement.

Check out this calculator which shows you the potential cost based on how far the case goes and what the employee is paid. It is worth doing this correctly.

If you need help we can work through this with you

Performance Management Package - $2275 + GST

Do you need to have a difficult conversation about someone’s performance in your team? The Performance Management package will provide the advice, strategy, risk assessment and process for handling the performance management & potential exit of an employee. Provision of scripts and personal coaching of the Manager on the conversation and steps to ensure that, should a termination occur, it's not considered 'unfair, unjust or unreasonable'. Includes: drafting documents, attending and directing / driving the Performance Management / Exit meetings. Calculating termination payments & drafting internal communication messages plus completing all exit documentation and communication. Liaison with employee after exit. Providing & completing a Without Prejudice and Mutual Separation discussion.

A Deed of Release PDF document, is an additional cost, if required.

Deborah Vella

Deborah Vella at

It is essential that the legal due process is followed correctly. I recommend the advice of a specialist in this field as Natasha suggests.

Simon Smith

Simon Smith at

Hi, are you in Australia? This is not law so to speak. In Australia an advocate (I am a workplace forensic investigator/mediator and conciliator and get far better results) attends a phone conciliation if they try unfair dismissal on you.

You need to have serious misconduct. Talking negative is possible. Coming in late is not major unless it is well documents. The secret is to have policies and documented warning systems. It has to be very serious.

I would be happy to do this (and I charge less than a lawyer) as you can guarantee they will lodge a Fair Work claim against you. My strategy is always to have 'serious misconduct' clearly defined matching the Act. I would need to understand what the person was saying and it may take some work. There are other methods.