Dismissal and Redundancy for Small business
Terminating an employee is often a traumatic and difficult time for all concerned. This is not only from an interpersonal basis but also from a legal perspective. A wrong decision or interpretation can catapult you into the world of courts, significant legal expenses, fines, reinstatements and most importantly loss of focus on the business imperatives. This article therefore attempts the provide clarity as to your obligations, as a small business, and how to ensure that the termination is enacted in a manner that best protects your interests against unfair dismissal claims
Dismissal or Redundancy
A good way to answer this question is to ask if the termination is a consequence of the position significant changing, or disappearing altogether, or whether the employee is not meeting the requirements implicit in Job description that defines the position. The former will be defined as a redundancy and the latter a dismissal.
There is a simple Fair Dismissal Code checklist (available below) for small business employers to follow to ensure that they do not unfairly dismiss an employee. If an employer has strictly followed the checklist then the dismissal will be deemed to be fair.
Under the Fair Dismissal Code, employees of small businesses cannot make a claim for unfair dismissal in the first 12 months after being hired. Employees of larger businesses are able to make a claim for unfair dismissal at 6 months.
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.