How to fire an employee legally

Labour laws & regulations

There are specific procedures you should follow in Australia you must follow to ensure you fire an employee legally. Firing an employee in Australia must be done in accordance with the country's labour laws and regulations. Here are the general steps to consider.

Understand the employment contract

Review the employee's employment contract to understand the terms and conditions of their employment, including any notice period, termination clauses, and the reasons for which employment can be terminated.

Valid reasons for termination

Ensure you have valid reasons for terminating the employee. Valid reasons may include poor performance, misconduct, redundancy, or a genuine operational reason. Unlawful reasons for termination include discrimination, harassment, or adverse actions related to protected rights.

Procedural fairness

Before terminating the employee, follow the principles of procedural fairness, which means giving the employee an opportunity to respond to allegations or concerns, conducting a fair and unbiased investigation if necessary, and allowing the employee to have a support person present during any meetings or discussions.

Notice period or payment in lieu

Provide the employee with the required notice period as stipulated in their employment contract or the relevant award or agreement. Alternatively, you may pay the employee in lieu of notice if this is agreed upon or specified in the contract.

Redundancy considerations

If you're terminating an employee due to redundancy, you must follow the redundancy provisions in the Fair Work Act and provide the employee with the required notice, severance pay, and consultation.

Consultation & communication

Discuss the termination with the employee, explaining the reasons and providing them with any supporting evidence or documentation. Be open to questions and discussions during this process.

Payment of outstanding entitlements

Ensure that all outstanding entitlements, such as accrued but unused annual leave, long service leave, and other benefits, are paid to the terminated employee as required by law.

Termination meeting

Hold a termination meeting with the employee to confirm the decision in writing, discuss any post-employment obligations, and provide information about their final paycheck, any entitlements, and the return of company property.

Provide a written termination letter

Issue a formal written termination letter to the employee, outlining the reasons for termination, the effective date, and details of any post-employment obligations.

Compliance with notice periods

Ensure that you comply with any notice period specified in the employee's contract, award, or agreement.

Employee access to their rights

Inform the employee of their rights and options, including their ability to make an unfair dismissal claim to the Fair Work Commission if they believe the termination was unfair or unjust.

Record-keeping

Maintain thorough records of the termination process, including all discussions, correspondence, and documents related to the termination.

Seek legal advice

It's advisable to consult with legal counsel or an HR expert to ensure you are following the appropriate laws and regulations.

Terminating an employee should be a last resort, and it's crucial to handle the process with care and respect to minimise potential legal complications. Legal requirements may vary based on the employee's specific circumstances, so it's essential to consult with legal experts or relevant government authorities for guidance in particular cases.