Three strikes and you are out
Many of us are familiar with the 'three warning' rule - three strikes and you are out. This is actually a common misconception, and such a rule does not exist. If this was the case, employees could do basically whatever they wish on the first two occasions, knowing that they need three strikes before they are out. At the same time, employers can't just sack anyone willy-nilly. It is extremely important that your employment contract clearly states the reasons for summary dismissal, as well as references the organisation's dismissal process. Employees may have a case for unfair dismissal if they are dismissed from their job in a harsh, unjust, and unreasonable manner.
When can you summarily dismiss someone?
When an employee has committed a serious breach or repudiation the employer has the right to terminate employment with immediate effect. With a summary dismissal, the employee can be terminated without notice and without a payment in lieu of notice.
For misconduct to justify summary dismissal, it must be sufficiently serious as to make the continuation of the employment contract impractical. Many types of misconduct will not give grounds for summary dismissal if engaged in by the employee as “a one-off” act. However, an exception applies for more serious conduct such as sexual assault or fraud. In addition, repeated breaches may have a cumulative effect amounting to nullifying an employment contract.
How can an employer avoid an unfair dismissal claim?
The definition of unfair dismissal is that the employee was dismissed from their job in a harsh, unjust, and unreasonable manner. Below we have listed a few ways that employers can ensure they can avoid unfair dismissal claims:
Always ensure that you have a valid reason for the dismissal of the employee. Terminating an employee cannot be premised on bias or prejudice.
Follow the required notice periods - you can find these from National Employment Standards and the modern Award specific to your industry.
Ensure that you have followed an adequate process and provided the employee with the opportunity to respond to any allegations if they are terminated.
Ensure that the employee has been provided (in writing!) with the option to have a support person in relation to the unfair dismissal.
Ensure that the dismissal is in writing and that you have provided this to your employee 24 hours prior to meeting with them. You are not required to do this for casual employees, or if your permanent employee has engaged in serious misconduct.
