Code of practice - fair treatment of employees - termination of employment
Termination of employment
1. Purpose
2. Summary
3. Disclaimer
Points for employers
4. Basic requirements for termination of employment
5. Employment issues
6. Dispute resolution and grievance handling
7. What is good management practice for disciplining or dismissing an employee?
8. Are there incidents where an employer can dismiss an employee on the spot?
9. The employer may also dismiss an employee because of the operational requirements of the business
10. When is a dismissal unlawful?
11. What happens if an employee is forced to resign?
Points for employees
12. Giving notice of termination to your employer
13. Participating in performance reviews or counselling
- To facilitate and encourage fair industrial relations and workplace practices in Queensland around the termination of employment by either employers or employees.
- This Code of Practice is intended to assist employers and employees who are seeking to act fairly and reasonably in their actions, particularly in relation to dispute resolution, grievance handling, disciplinary action, and termination or resignation of employment.
- It is recognised that a decision by an employer to dismiss an employee or by an employee to resign can be difficult for a number of reasons.
- It is intended that this Code of Practice will assist employers and employees in following fair and reasonable processes and help reduce difficulties surrounding the end of an employment relationship.
- This Code of Practice is not intended to be used in replacement of any industrial instrument (such as an Award or Workplace Agreement) or legislative requirements that may apply to a particular employment relationship. It is in no way a statement of the legal rights and obligations concerning an employment relationship.
- This Code of Practice is not intended to be, nor can it be, relied on as a defence to an action for a breach of an industrial instrument or legislative obligation relating to an employment relationship existing in any jurisdiction.
- This Code of Practice is not intended to be relied on as legal advice. It does not contain specific information about what rights and obligations apply to a specific employment relationship. Information, not including legal advice, of that nature can be obtained from:
a) Wageline: Telephone 1300 369 945,
b) the Federal Workplace Infoline: Telephone 1300 363 264 or,
c) the employer's relevant industry association,
d) the employee's relevant Union, or
e) a lawyer (including legal advice).
4. Basic requirements for termination of employment
- A fair employer will have a valid reason to consider termination, based on the employee's performance; the employee's conduct; the employee's capacity, or changes to the operational requirements of the business.
- A fair employer will ensure that a dismissal is not harsh, unfair or unreasonable: which means that the employer must not only have a valid reason, but also that adequate warnings, counselling, training and opportunities for improvement are provided to the employee prior to the dismissal.
- If deciding to terminate an employee, a fair employer will clearly specify the date on which the employee's engagement is terminated and whether the employee must work out the required notice period, or whether the employment is to cease immediately and the employee is paid the relevant wages in lieu of notice.
- A fair employer will provide this information to the employee in writing.
- Notice periods under the federal and state legislation are as follows:
a) not more than 1 year – 1 week;
b) more than 1 year, but not more than 3 years – 2 weeks;
c) more than 3 years, but not more than 5 years – 3 weeks;
d) more than 5 years – 4 weeks; and
e) an extra 1 week if the employee is 45 years of age or over and has completed at least 2 years of continuous service. - Awards and (registered) Agreements may contain provisions for different notice periods than the federal or state legislation.
- Good human resource management practices can prevent difficulties during employment and prevent employment disputes escalating to dismissal. This can make enterprises more effective and efficient.
- Effective human resource management practices should be:
a) in place from the start of employment;
b) applied fairly and consistently; and
c) known and understood by all employees. - As part of good management practice, all employees should receive:
a) a written statement setting out whether they are employed in a full-time, part-time, or casual capacity; the duties, conduct and standards expected of them; their wages and conditions; their rights in the workplace and any reasonable obligations expected of them. This may or may not include a formal job description and/or code of conduct, but should be communicated clearly by the employer and understood clearly by the employee; and
b) induction training when an employee is first hired, relevant to the type of work they are required to perform and to the level of performance reasonably required. It is also good practice to monitor and regularly review the performance of every employee and provided them with feedback. - Each award or (registered) agreement covering an employee should also contain a dispute resolution or grievance procedure, so that the concerns of the employer and the employee can be adequately addressed in a reasonable and non-threatening manner.
a) A dispute resolution process allows employees and the employer to identify and jointly resolve problems at an early stage.
b) A dispute resolution procedure can prevent employment disputes ending in the dismissal of an employee. An effective system should include opportunities for raising and responding to issues, for counselling and appropriate warnings before dismissal occurs. - A fair employer will ensure all employees are fully aware of the processes, and that these are followed by the employer and employees to resolve and prevent problems.
6. Dispute resolution and greivance handling
1. Good management practice for dispute resolution and grievance handling should include:
- information on dispute resolution processes openly displayed and available to all employees/management;
- opportunities for each party to present their case;
- the person making the complaint being given the right to state their grievance;
- the person complained about being given the details of the allegation and being provided an opportunity to respond;
- an independent investigation into the grievance if necessary;
- the resolution process being conducted fairly and without bias;
- employees being afforded natural justice and the presumption of innocence;
- employees being offered the opportunity for representation and/or a witness;
- a reliable witness selected by and for the employer; and
- access to an independent umpire if internal processes prove unsuccessful.
2. In order to resolve disputes successfully, it is important that employees have confidence in the process; that it provides an opportunity to listen and to respond to all aggrieved parties; and that grievances are investigated in a way that is transparent, fair and without bias to either party.
7. What is good management practice for disciplining or dismissing an employee?
- Employers should check their legal obligations.
- Employers should not dismiss an employee unfairly.
- All employers, regardless of the size of the workforce, must not dismiss an employee unlawfully. Employers should check their legal obligations in relation to unfair and unlawful dismissals under the applicable legislation: the Industrial Relations Act 1999 or the Workplace Relations Act 1996.
- To make sure that you are acting lawfully and following good management practices, it makes good sense to follow clear and written disciplinary and dismissal processes which are openly displayed and available to all employees/management.
a) It should be clearly indicated to employees what types of behaviour will attract disciplinary action. Inappropriate behaviour can relate to conduct or performance.
b) If you have concerns with an employee, it is important to explain these concerns as they arise and to clearly state what your expectations are and how the employee can improve their conduct or performance.
c) If you have received an allegation about an employee, it is best to raise this with the employee privately and to provide all details of the allegation together with an opportunity and a timeframe for the employee to respond.
d) Before any disciplinary action is taken, the employer should conduct an investigation into the allegations to seek information or evidence to confirm or deny the suspicion o allegation. It is important that the investigation is seen to be independent and unbiased. The employer should then give all information - including the employee’s response - reasonable consideration before making a decision. - If an investigation results in the allegations or concerns being confirmed, the employer should consider counselling the employee, such as follows:
a) Arrange a meeting time with the employee, provide an outline of the inappropriate behaviour and how the meeting will be conducted;
b) Provide a reasonable period for the employee to prepare for the meeting and to arrange for a representative or an observer to attend;
c) If possible, provide the allegations or examples of inappropriate behaviour in writing;
d) If the employee denies the allegation and wishes to provide additional information or evidence and if this request is seen as reasonable, the employee should be provided with the opportunity to respond at a second meeting;
e) A reasonable time period should be agreed and confirmed by both parties and no additional action should be taken until after reasonable consideration of the employee’s response;
f) If the employee concedes to the allegations, there may be mitigating factors that the employer should take into account, such as experience, age, level of training and supervision or personal difficulties that the employee is experiencing; and
g) A fair employer would keep an accurate record of any meetings and copies of any documents given to the employee or any documents given by the employee to the employer. It would also be useful for the employer to give the employee a record of any meeting for the employee to review and to sign the meeting record, should they agree with the accuracy of its contents. - In most instances, a fair employer should provide an employee the opportunity to improve their conduct or performance prior to decisions being made about their continued employment. In order to do this effectively, a fair employer would:
a) clearly explain the concerns with the conduct or performance of the employee;
b) outline the employer’s expectations in terms of the standard of work or behaviour;
c) provide training or supervision if necessary;
d) propose a review date which gives the employee reasonable time for improvement; and
e) provide positive feedback if warranted to encourage continued improvement. - Remember that improvement does not happen instantly and the employee may require further counselling sessions before they reach the expected standard. If reasonable improvement occurs, it makes good business sense for an employer to retain the employee as they develop their skills and experience.
- In the event that an employee’s conduct or performance requires disciplinary action either in the form of a warning or a determination about their continued employment, a fair employer would follow formal procedures, such as:
a) Information on termination processes displayed openly and available to all employees/management;
b) Clarification of the types of behaviour that warrant warnings/dismissal;
c) A fair employer would provide an employee with a written warning outlining the offending behaviour that, if continued, may constitute the basis for dismissal;
d) A fair employer would provide an employee with an opportunity to respond within a reasonable and specified timeframe;
e) A fair employer would give an employee an opportunity to amend their behaviour according to a written set of requirements and within a reasonable and specified timeframe; and
f) A fair employer acknowledges the right of an employee to seek advice and/or assistance at any stage of the process. - A fair employer would make an employee aware when a final warning is being given that the required improvement must be met, and of any timeframe that applies to the required improvement, or it will lead to dismissal.
8. Are there incidents where an employer can dismiss an employee on the spot?
- An employer can dismiss an employee for serious misconduct without notice or compensation but only if the misconduct is proven.
- Examples of serious misconduct which, if substantiated would warrant termination without notice include:
a) theft;
b) assault;
c) fraud; and
d) other matters prescribed by legislative regulation. - In most allegations of serious misconduct, a fair employer would act immediately to investigate the offence, preferably within 24 hours, and take into account the seriousness of the offence and its connection to the employee's duties or employment activities. For instance, the fact that criminal charges have been laid against an employee does not necessarily entitle the employer to terminate their employment if there is no direct connection between the charge and the employee's work.
9. The employer may also dismiss an employee because of the operational requirements of the business
1. The employer should follow procedures endorsed by Australian and Queensland Industrial Relations Commissions before taking this course of action.
2. If the employer makes the decision to terminate an employee because of operational requirements or changes to the operational requirements of the business, the termination is called a redundancy. Examples might include:
- Sale of business – jobs no longer exist and will not be done by anyone;
- Winding up of company – termination at initiation of company;
- Position abolished but work performed by others or job splitting;
- Loss of business due to competition or downturn;
- Unable to afford to continue to employ; and
- Business closure as a result of downturn in trade or ill health of employer.
3. Under the standards established by the industrial relations commissions, the following procedures should be followed:
- Consultations and discussions about the operational changes to occur with employees and their unions as soon as possible;
- Process for updates and release of information to employees and ongoing discussions;
- Opportunities for employees and their unions to consider measures to avoid or minimise terminations;
- Employees to be advised of decisions on numbers and categories of employees affected;
- The process for selection of employees for redundancy to be fair and non-discriminatory;
- Alternative employment should be offered where possible; time off to be provided for job seeking purposes, as well as the ability to commence new employment during a notice period allowed without penalty; and
- In cases of redundancy, the appropriate redundancy severance payment should be made to any affected employees.
10. When is a dismissal unlawful?
1. An employer must not dismiss an employee for the following unlawful reasons:
- temporary absence from work because of illness or injury;
- trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;
- non-membership of a trade union;
- seeking office as, or acting or having acted in the capacity of, a representative of employees;
- the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
- race; colour; sex; sexual preference; age; physical or mental disability; marital status; family responsibilities; pregnancy; religion; political opinion; national extraction or social origin;
- refusing to negotiate in connection with; or refusing to: make; sign; extend; vary; or terminate an Australian Workplace Agreement (AWA);
- absence from work during maternity leave or other parental leave; and
- temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
2. Other unlawful reasons for dismissal include:
- dismissing an employee while absent on workers' compensation during their first 12 months away from work if the principal reason for the dismissal is the employee's absence, which is an offence under the Workers' Compensation and Rehabilitation Act 2003; and
- dismissing an employee for making a complaint to Workplace Health and Safety Queensland or in any way raising a workplace safety concern, which is an offence under Workplace Health and Safety Act 1995.
3. If an employer is found to have dismissed for unlawful reasons, they will attract a penalty under the federal legislation and under the State Acts identified above. In addition, an industrial court or tribunal may order that the employee be reinstated and/or receive compensation from the employer.
11. What happens if the employee is forced to resign?
- Circumstances where an employee can prove that they were forced to resign or were placed under sufficient pressure to resign involuntarily have been recognised in industrial courts and tribunals as a “constructive dismissal”, attracting the same rights and remedies as a dismissal.
- A fair employer will make sure that an employee is not pressured into resigning because they feel they have no other choice.
12. Giving notice of termination to your employer
- If an employee wishes to resign, a fair employee would provide an employer with adequate notice, and, in any case, observe the minimum notice requirements of their award, agreement or contract. These minimum notice periods under awards, agreements or contracts may differ from those minimums provided in the Acts.
a) Employees should always check the notice provisions of their Award, (registered) Agreement or contract before giving notice, or, if there is any uncertainty, check with Wageline or the Federal Workplace Infoline. - The length of notice required is usually dependent on years of service as follows (but as per the above, employees should check the provisions of their Award or Agreement):
a) not more than 1 year – 1 week;
b) more than 1 year, but not more than 3 years – 2 weeks;
c) more than 3 years, but not more than 5 years – 3 weeks;
d) more than 5 years – 4 weeks. - If an employee does not give notice or does not give the full notice period required, the employer is lawfully able to deduct the notice from the employee's pay or other monies owing to the employee (such as pro rata annual leave payments).
- If an employee is engaged in a casual capacity, they are not required to give notice, unless provided for in their Award, (registered) Agreement or contract.
13. Participating in performance reviews and counselling
- It is good management practice for an employer to encourage and possibly reward an employee for their good performance.
- Equally, an employee should expect that an employer can reasonably raise and discuss concerns as a legitimate workplace practice.
- An employee should expect to participate in performance reviews conducted by their employer. An employee is required to respond to an employer who has a concern about their conduct, capacity or performance, and to participate in discussions with the employer about how to improve their work performance.
- In these discussions, an employee should always seek to have a support person present if possible, and to be honest and reasonable in discussions with the employer. It is advisable for employees or their support person to keep at least a summary record of such meetings.
- It is reasonable for an employer to ask an employee to initial or sign a record of a meeting or to agree to outcomes from a meeting, provided the record is accurate. It is also reasonable for an employee to amend the record or note their disagreement to any points on the record at the time of initialing or signing.
Last updated 3 March 2008
