The factors that determine how much notice you need to give before a dismissal.
Letting go of an employee can be one of the most difficult parts of the job.
Not only on an emotional level (no one likes confrontation or hurting someone, no matter how badly they might be doing their job), but legally, terminating someone’s employment can be a minefield. It is important to understand how much notice you are required to give.
Being a boss comes with power, but as the movies say, “with great power comes great responsibility”. You may be in charge, but by law you can’t just go around firing people when the mood strikes.
As well as having a good reason for letting a worker go, it is important to make sure you give the correct amount of notice.
The amount of notice required usually depends on three main factors:
1. the circumstances giving rise to the termination
2. the duration and type of employment (permanent ongoing, casual, seasonal, fixed term, maximum term and so on)
3. the age of the employee
Circumstances of Dismissal
Any employee can be dismissed without notice if you (the employer) have reasonable grounds to believe that there has been “serious misconduct”. Lawyers often refer to this as “summary dismissal.”
Serious misconduct includes obviously inappropriate, dangerous and/or harmful behaviour, such as theft, fraud, assault, being intoxicated at work, and serious breaches of occupational health and safety procedures.
It also includes conduct that is damaging to the employment relationship (for example, refusing to follow lawful and reasonable instruction) or is harmful to the employer’s business interests (for example, conduct that may cause serious reputational damage).
As an employee who is summarily dismissed can still bring an unfair dismissal claim, it is still important to make sure the decision is not harsh, unjust or unreasonable. Please read our unfair dismissal blog for more information.
For more information about unfair dismissal, visit our blog post “When is a dismissal considered to be unfair.”
Duration and Type of Employment
Certain other employees are not entitled to notice, even where there is no serious misconduct. For example, casuals, daily hire employees in the building and construction industry, and apprentices.
Employees who are engaged for a specific period of time, specific season or to perform a specific task are also exempt. With a properly drafted employment agreement, this type of employment will automatically end at the end of the period, end of the season or when the particular task is complete.
Age of Worker
Workers over 45 years of age who have had at least two years of continuous service are also usually entitled to one week more notice than everyone else.
If you have any questions or concerns about how much notice you are required to give, or how much notice you should receive, contact us.