Types of Dismissal
There are essentially two types of dismissal. The first, “Summary” is where the employee’s conduct has been proven on reasonable grounds to be so serious that it justified immediate dismissal. In such circumstances, it is fair for an employer to dismiss an employee without notice or warning. Serious misconduct includes theft, fraud, violence (including verbal) and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police.
In all other cases, the small business employer must give the employee a reason why they are at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The following small business employees are not allowed to make unfair dismissal claims:
- Employees who have worked for the business for less than 12 months.
- Employees who have worked as irregular casual employees.
- Employees who are guaranteed a salary of over $108,000.
- Employees who have been dismissed due to business downturn or their position is no longer needed. See redundancy below.
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.