Step 7: Decision

Note: Before making any decision on terminating an employee, or taking any other form of disciplinary action, you must have your manager's approval.

There is a range of possible outcomes following the investigation and interview process.

Allegation not substantiated

If an acceptable explanation is given by the employee, the employee should be allowed to resume work on the same terms of employment as applied before the incident arose. When an allegation is unsubstantiated, no action will be taken against the employee.

Allegation is substantiated

If it’s determined that the allegation is substantiated, the appropriate form of action will then be decided.

The test for whether your action in dismissing an employee is justified will depend on whether the action is one a reasonable employer “could” (as opposed to "would") take in the circumstances at the time of the dismissal.  

In applying the test the Authority or the Court must consider:

• Whether, having regard to the employer’s resources, the employer investigated the allegations before dismissing the employee.
• Whether the employer raised the concerns with the employee before the dismissal.
• Whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before the dismissal.
• Whether the employer genuinely considered the employee’s explanation (if any) before the dismissal.
  
  

The Authority or the Court must not determine a dismissal to be unjustified solely because of defects in the process, if the defects were minor and did not result in the employee being treated unfairly.

However, great care must still be taken in following the correct procedure and deciding on the appropriate level of disciplinary action. The decision will involve a choice between:

Alternative Action

This is an alternative to Termination or Dismissal and may involve:

• Allowing the employee to resign.
• Retaining the employee in their current job with or without:
• Relocation
• Time out (paid or unpaid)
• Final written warning
• Different entitlements (for example, overtime restriction or roster change)
• Redeploying the employee in a different job with or without:
• Demotion
• Time out (paid or unpaid)
• Final written warning
• Different entitlements (for example, overtime restriction or roster change).
  
  

The following prerequisites are essential before Alternative Action is contemplated:

• The employee must take ownership of the problem and demonstrate a commitment to building a productive career with the business.
• The employee must be capable of making a positive contribution to the business.
• The employee and you must have a shared commitment to making the alternative action actually work.
• The employee must agree to the alternative action proposed.
• The alternative action must not compromise future disciplinary actions.
• The alternative action must not prevent the possibility of eventual termination if the alternative action is unsuccessful.
  
  

Details on what the alternative action is, and why it is supported, must be put in writing and be signed off by those with appropriate authority.

Termination with Notice

This step is appropriate as the culmination of the warning procedure where an employee’s work performance has repeatedly been unsatisfactory or where repeated instances of misconduct have occurred.

• Do not take a decision to terminate until after the final discipline interview has been completed (not before or during).
• Provide the employee terminated on notice with a letter or notice stating clearly the reason for termination. Use the Termination Letter.  Do not give this letter until after the meeting is conducted to avoid a claim the decision was pre-determined.
• The period of notice required to be given will be that specified in the employee’s employment agreement.
• You have the right to pay the employee in lieu of notice, thereby ending the employment forthwith in return for wages/salary equivalent to the required period of notice. This often prevents disruption by the dismissed employee during the notice period. 
  
  

Dismissal without Notice (Summary Dismissal)

Dismissal without Notice (sometimes referred to as summary dismissal or instant dismissal) is appropriate where the offence, once investigated and confirmed, constitutes serious misconduct.

• Dismissal without Notice means dismissal without the need for the employee to receive any warning or without the need to give the employee notice of termination or payment in lieu of such notice. However, there must still be proper investigation and process before a decision to dismiss is made.
• Do not take a decision to dismiss until after the final discipline interview has been completed (not before or during).
• Provide the employee dismissed with a letter or notice stating clearly the reason for dismissal. Use the Dismissal Letter.  Do not give this letter until after the meeting is conducted to avoid a claim the decision was pre-determined.
• Direct an employee dismissed without notice for serious misconduct to leave the workplace as soon as possible (with all outstanding pay down to the point of dismissal made up as soon as possible). Where appropriate, accompany the dismissed employee until clear of the workplace, but do so sensitively so the employee does not feel further humiliation.

Continue to Step 8