Dismissing employees – legitimate reasons but beware you must adhere to the process and afford procedural fairness.

Dismissing employees can be stressful, difficult and complex process. It is a decision that carries legal risks and can take a significant amount of time and resources.

When dismissing employees who earn less than the defined high income threshold currently $138,900 from 1 July 2016 (see http://www.afei.org.au/node/109027 or who are covered by an award or enterprise agreement, care needs to be taken to minimise the risk of an unfair dismissal claim in the Fair Work a state commission


To protect your business when dismissing employees in the case of misconduct you must;

  • Ensure that you have a valid reason to terminate an employee.
  • Act in a fair and reasonable manner during the process.
  • Ensure that you have provided the employee procedural fairness.
  • Consider the employees records and circumstances
  • Follow any applicable rules regarding dismissal, notice of termination, and final pay, including accrued outstanding leave.


With a legitimate reason, a proper procedure, and quality advice, you can feel secure in terminating an employee with minimised risk.

Below are four valid reasons for dismissing an employee.


Misconduct can refer to a range of behaviour including breaching company policy and inappropriate behaviour that leads to Dismissing employees.

Serious misconduct includes theft, fraud, assault, other unlawful activity and any wilful or deliberate conduct that is fundamentally inconsistent with continuation of the employment, and conduct that causes and serious and imminent risk to health and safety or the reputation, viability or profitability of the employer’s business.

Your company policies, procedure or Code of Conduct should be clearly set out so you have grounds to take action. If you do not have these I strongly advise that you seek assistance and HR support, AWPTI can assist – http://awpti.com.au/backup/hr-support/

You must have evidence that misconduct occurred and that efforts were made to formally warn the employee about their misconduct. You don’t need to give any warnings in the case of serious misconduct before you can terminate, but you do need evidence and procedural fairness.

It is recommended that if termination is a likely outcome a thorough investigation is carried out to ensure you have the evidence and that procedural fairness (meaning giving the employee the opportunity to respond to allegations about their conduct) is afforded. AWPTI can assist with investigation services http://awpti.com.au/backup/investigations/

In cases of serious misconduct, employers do not have to provide any notice of termination. However, as this is a drastic measure, you need to be sure you have a sound basis and valid reason, having afforded procedural fairness. If you are unsure the employee may be suspended while and investigation takes place


Capacity relates to an employee’s ability to carry out the requirements of the job. In order to use incapacity as a legitimate reason to terminate an employee, you need to identify the core duties of the job position and assess the employee’s ability to perform them. In doing so, you must ensure that you are not unlawfully discriminating against the employee by reason of illness or some other incapacity.

Once again, you need evidence that a lack of capacity exists and that reasonable measures were taken to find a solution or provide alternative duties. This is especially important in the case of disability or medical incapacity.

It is very important that you have clearly written position description that clarify that nature of the position and the responsibilities of the employee. If you do not have clear and current position description AWPTI can assist – http://awpti.com.au/backup/hr-support/


Managing poor performance can be a risky process. A structured and well-prepared performance management plan or improvement procedure can protect you from ending up on the receiving end of a bullying or unfair dismissal claim.

Identify the performance problem and formally discuss it with the employee. You need to give concrete examples of poor performance rather than general comments about their productivity. Give them the opportunity to respond, advise them on how they can improve their performance and give them time to do so. Most importantly, you need to document the process.

Ensure that you can demonstrate a well-established performance management process in case a claim is made against you. Check contracts, industrial agreements, policies and procedures to ensure you are complying with any relevant rules or procedures. Verify your facts, ensure you have evidence and again, above all, document everything. http://awpti.com.au/backup/hr-support/


Redundancy is a valid reason for termination. You need to show that the employee’s position is no longer required to be performed by anyone because of changes in the operational requirements of your business.

Protect your business from an unfair dismissal claim by making sure you follow any consultation requirements outlined in an applicable award or registered agreement.

You should also have explored all reasonable opportunity to redeploy the employee in another position. It is best practice to consult employees about redundancy and redeployment regardless of the right to be consulted under an award or enterprise agreement. Affording empathy to employees who are adversely affected by redundancies goes a long way in minimising the risk of claims.

AWPTI With all areas of workplace investigations, training and HR support that are essential when dismissing employees.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations



The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 0409 078 322 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published.