Pulse Check: terminations, absent and underperforming employees
As a CCIWA Member, you get unlimited access to our Employee Relations Advice Centre (ERAC). We are here to help you manage your employee relations needs. This includes prompt advice on your circumstances, consulting, documents such as kits and guides and up-to-date industrial relations information.
Here are some of this month’s frequently asked questions that have come through our advice centre.
Q: Can we terminate an underperforming employee within their probation period?
A: Yes, you can, however, the reason given and the process that is followed before doing so can be crucial to protecting the business from future successful claims.
Q: How much notice are you required to pay at termination if you terminate within a six-month probation?
A: The amount of notice required depends on what covers that employee. Where there is a written contract of employment there will usually be a clause specifying how much notice an employer must give based on the employee’s length of service. However, this clause cannot lawfully provide a shorter notice period than what is in the relevant award or enterprise agreement that applies to the employee. Where an employee is award and agreement free, then the Fair Work (FW) Act provides the minimum amount of notice required to be given by an employer. In this instance, under the FW Act, the employer would be required to give one weeks’ notice.
Q: An employee has not attended work today and has not notified anyone. What can you do?
A: There are many reasons why an employee may not have attended work. The first step in addressing this is for their manager/supervisor to give them a call to ask about their whereabouts. If the employee is sick or has had an emergency, the manager/supervisor can take the opportunity to ask for evidence (where required) and to remind the employee that they must notify before their start time (where practicable) and to refer the employee to any relevant leave policy in the workplace. Where the employer is unable to contact the employee via telephone, it is best to also email and/or text them. The employer may also try contacting the listed emergency contact.
It should not be assumed, without making reasonable attempts to contact the employee, that they have automatically abandoned their employment.
Q: What if an employee repeatedly does not notify you they are sick and unable to attend work before their start time?
A: This can be a challenging situation for the employer who is then required to pick up, cover, delegate or cancel the work with no notice.
It is recommended that employers have a clear leave policy that provides clarity for employees about when and how they should notify the employer of their illness. Where an employee does not follow the policy, the employer can consider addressing this breach by the employee through a casual comment, management direction, performance management, disciplinary or even termination. The best option for the business will be based on the circumstances, including how the business has addressed similar issues in the past, any relevant policies and procedures, the business objective, the employee’s personal circumstances and any other relevant information. It is recommended that employers seek advice on this, especially when considering addressing it by using more than one casual comment to the employee.
It is essential to contact ERAC on 9365 7660 or email [email protected] before acting on this information.
As a CCIWA Member, you get access to ERAC. To be part of WA’s peak business organisation, get in touch via 1300 422 492 or [email protected].