Over the past few weeks, a large proportion of Twitter employees around the world have been fired.  No redundancy process, no consultation processes, no due process.  Many found out their jobs were gone when they tried to login in to work remotely and their credentials were invalid while others were lucky enough to receive an email advising the end of their employment.
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The big issue here, is that in Australia, this simply isn’t legal.  You cannot just fire an employee arbitrarily unless you want to end up on the wrong end of an unfair dismissal claim with a side order of compensation costs to boot.

CASE STUDY
A recent case heard by the Fair Work Commission (FWC), clearly shows that following process will help you avoid hefty fines.  Recently, Johns Lyng Group terminated the employment of Simon Ronchi.  To be fair, there was significant evidence Simon was sending inappropriate messages to his manager, performing work that conflicted with his employment contract duties, and neglecting his duties so it seemed a reasonable outcome.  It was how the Johns Lyng Group got there that was the problem.

Before finalising any decision to terminate Ronchi’s employment, the business asked him to a meeting to discuss “some issues and concerns”.  As can sometimes happen in these situations, the meeting didn’t go well as tempers flared and with Ronchi becoming aggressive and defensive making disparaging comments about his employer implying that inappropriate business practices were common and known.

Ronchi had his employment terminated on the spot with two weeks’ salary paid in lieu of notice.  Seems reasonable right?  We see it on TV all the time – a heated exchange between an employee and their manager, a quick “you’re fired” and then we see the employee packing their pot plant into an archive box and being escorted off the premises by the burly security guy.  Simples.  Not quite.

In this case, the employee lodged an unfair dismissal application with the Fair Work Commission which is his absolute right under Australian employment law.  The Commission determined that while there was a valid reason for the dismissal, it was not managed in a procedurally fair manner.

Anyone who has had to administer a process such as this may be thinking hang on, they invited him to a meeting to discuss the “issues and concerns’, he had his chance to state his side of affairs after being confronted with the detail and evidence of the “concerns”.

The Commission however was not at all satisfied that the employee had been given a genuine opportunity to consider the serious nature of the allegations or the extent of the evidence against him, especially when considering the heightened response by both parties as the meeting escalated.  The meeting should have been halted when emotions ran high and Ronchi should have been given an opportunity to show cause as to why he shouldn’t have his employment terminated.

And that’s the clincher, the opportunity to show just cause. Without this step, termination of employment, even with significant bad behaviour or a volatile meeting whipping out of control, does not allow for anyone to be fired on the spot despite some reality shows and billionaire business owners suggesting otherwise.

In this instance, the Commission ordered the amount of one week’s salary to be paid to the employee in compensation.  This may seem light but also consider the time and effort and cost if additional support is required when preparing to front the Commission to defend your position.  It’s significantly more cost effective and time efficient to adhere to a procedurally fair process which is designed to give everyone a chance to redeem a challenging situation.

KEY LEARNINGS
Most important is that business leaders, owners, managers all understand that you cannot terminate the employment of an employee in the heat of the moment, even with a significant amount of evidence relating to underperformance or manifestly poor behaviour.  You absolutely must conduct a procedurally fair process which may still mean that an unfair dismissal claim is lodged but you will be able to prove you have conducted yourself appropriately and minimise the impact to yourself and your business.

There will be times that you will face challenging behaviour from one or more of your employees and knowing how to manage it in a manner that delivers a satisfactory and fair outcome can be overwhelming which is why the HR Staff n’ Stuff team is always here to support you.  Before you react, call on the knowledge of our HR consultants and let us help you manage a difficult situation correctly.