Stop, think and seek advice before you fire someone

We often receive phone calls from members who are frustrated with an employee who either refuses to do the right thing or is just ‘a consistent underperformer’, that is, cannot perform the duties of the position. The member wants to get rid of the employee straight away by just telling the employee they are sacked.

However, a recent Fair Work Commission decision again highlighted the need to exercise caution before actually terminating an employee’s employment. Even though the Commission found that there was a valid reason to dismiss the employee the termination was unfair due to a lack of procedural fairness. This is so often the case in unfair dismissal claims. The employee was awarded 8 weeks’ pay in compensation.

In Unicomb v SESLS Industrial Pty Ltd [2025] FWC 186 the employee breached the medical management plan twice with on-site drug testing, and placed himself and others at risk by disabling safety equipment. The Commission found that such behaviour was a valid reason for dismissal.

So, what went wrong?

Unfortunately, the employer did not follow the necessary steps in the process and as set out in the legislation. In this case the employee was escorted into the carpark and in a two minute conversation the employee was dismissed with immediate effect. Basically, the employee was not provided an opportunity to formally respond to the reasons for dismissal. This absence of procedural fairness rendered the termination process 'manifestly inadequate'.

Even in circumstances where the reasons for dismissal are valid, and even obvious, it is important to afford the employee the opportunity to respond to these reasons.

Before dismissing an employee, it is important to get advice as to the steps to follow. Primary Employers Tasmania can assist you and even attend disciplinary meetings to make sure that all requirements are met.