The Workplace Coach

This week we are going to look at what to do if you discover that you have just hired the wrong person. In this scenario, it’s imperative that you move quickly.

In order to be eligible to make an application to the Fair Work Commission for unfair dismissal, a person must have been employed for the Minimum Employment Period (MEP) of six months and be earning less than the high-income threshold (currently $167,500). This MEP is where employers get their ‘probation period’ from.  This means that if you find that you have made a poor selection decision and need to terminate the employment of the new starter, you want to do it quickly and cleanly within the first six months of their employment.

It is a commonly held, but incorrect, belief that terminating someone’s employment during the probation period doesn’t require a formal process.  It is true that you don’t need a long drawn-out performance management process, nor do you need to slog through a lengthy workplace investigation into misconduct, but you do still need to have a legitimate process.

If you terminate the employment of a person within their first six months, they may not have access to unfair dismissal applications through the Fair Work Commission, but there are other legal avenues they might pursue.  This is why it is important, in the lead up to the termination, that you follow these four simple steps:

1. Clarify the problem: Let the employee know exactly what they need to change or improve to be meeting expectations in the role. Ideally, you would have the discussion with them and then provide the dot points in an email.  You should also inform them that if they are unwilling or unable to meet your expectations then their continued employment with the company could be at risk.
2. Opportunity to remedy: Ask them what assistance they might need in order to get up to speed, and then give them a reasonable opportunity to demonstrate the change or improvement. This is not a set period of time and will depend largely on what the issue is.  For example, if there is a behaviour that needs to change then this can happen immediately. If there is a skill that need to be developed, then a reasonable period might be weeks or months.
3. Show cause letter: If they still aren’t meeting expectations after the reasonable period, then meet with them again (invite them to bring a support person) and let them know verbally and in writing (commonly called a show cause letter) that you intend to terminate their employment and give them 24 hours to tell you, in writing, why that shouldn’t happen.
4. Decision: After considering their response, make your decision and communicate it both verbally and in writing. If you are terminating their employment, be sure that the termination letter includes the reasons for the termination and the date of effect (which can be immediate).  It should also stipulate the correct notice period, which you can choose to pay in lieu, and any accrued annual leave or other entitlements to be included in the final monies calculation.

Terminating employment always carries some risk that a disgruntled ex-employee might seek some kind of legal relief.  You can minimise the risk, especially during the first six months of employment, if you follow these four steps.  The other way to minimise the risk is to consult with your Human Resources team at the start of this process, rather than at the end of it.   

If you have any people management challenges that you would like some help with, reach out to us today for a confidential chat. 

The Workplace Coach
+61 419 246 633
info@theworkplacecoach.com.au
Canberra, ACT

ABN 95 684 597 472