Any worker can be dismissed if their work performance is unsatisfactory or if the employer has genuine financial and operational reasons.
For example, you cannot retire someone, threaten to retire them or do anything to make them retire because they have reached a certain age. It is also against the law to dismiss an employee because of an injury.
Managing underperformance, misconduct, redundancies and dismissal can be stressful for all concerned. Employers need to know their rights and responsibilities, as well as best practice guidelines, to manage risk and achieve the best possible outcome.
Tips to avoid discrimination
- Only dismiss an employee for poor work performance or serious misbehaviour.
- Document unsatisfactory work performance and discuss it with the employee, including the steps they can take to address the issue.
- Where possible, try to accommodate reasonable requests for workplace adjustments or flexible work.
Download a Best Practice Guide on Managing Underperformance from the Fair Work Ombudsman.
Small business owners should check the requirements of the Small Business Fair Dismissal Code at the Fair Work Australia website.
If an employee’s work performance or behaviour is unsatisfactory, the employee should be counselled as soon as possible. Good practice is to:
- have a clear written policy on disciplinary, warning and dismissal arrangements
- ensure that the policy is applied fairly and consistently to all staff members.
Example of counselling requirements
Alexandra worked as a property manager for two years before she became unwell and required hospital treatment for bipolar disorder. Her case manager contacted her employer to let him know that Alexandra would require two weeks’ sick leave. Alexandra’s employment was terminated shortly afterwards. Alexandra had not been counselled about poor work performance before being dismissed.