dismissing an employee

Your business rights and risks on dismissing an employee by Sinclair + May Director, Jessica Kerr

Making the wrong decision when hiring an employee can have huge knock-on ramifications for a small businesses. So, we asked Sinclair + May Director, Jessica Kerr about business rights and risks when dismissing an employee.

What is the probationary period when dismissing an employee?

Under the Fair Work Act (Cth) 2009 (the Act) an employee is not allowed to make an unfair dismissal application against an employer unless they’ve been employed for 6 months (by an employer with more than 15 employees) or 12 months (by an employer with less than 15 employees).

If you fit the small business definition (of less than 15 employees) you should refer to the Small Business Dismissal Guide before terminating an employee’s employment. It includes a step-by-step checklist to guide you through the process.

How do businesses manage the probation period?

Many businesses set their probation periods in line with the 6 month unfair dismissal minimum employment period. Some businesses also put in their contracts the ability to put an employee on a further probationary period. But regardless of the probation period in your contract, if you sack someone within their probation period, they cannot then claim unfair dismissal unless they have been employed for the minimum employment periods as set out above (6 or 12 months depending on the size of your business).

The risks with sacking an employee

However, this doesn’t mean that you can sack someone risk-free. Even if they are prevented from going down the unfair dismissal path, they could choose to pursue a general protections claim. Usually, claiming some kind of discrimination. Alternatively, they could go to the Human Rights Commission to make a discrimination complaint. Therefore, we strongly recommend that before you sack someone, you contact a lawyer to talk about the risks and ways in which you can minimise your liability before you embark down this path.

How can Sinclair + May help your business

  • Representing you to defend an unfair dismissal, general protections or breach of contract claim.
  • Drafting or reviewing contracts of employment and termination of employment letters.
  • Implementing disciplinary procedures in your workplace.
  • Updating your policies and procedures dealing with under performance and ramifications for failing to comply with your policies and procedures.
  • Training for your management or HR team on how to deal with under performance and performance management processes in order to minimise the risk of a claim in your business.

Clifton Hill Jessica Kerr Sinclair + May jessica@sinclairmay.com.auSinclair + May Director, Jessica Kerr

Sinclair + May work with small businesses to ensure their legals are in order and are an all-female legal practice.

Call us today to discuss your workplace needs on 03 9111 5660 or book a free 15-min chat here to talk with one of our solicitors.

Sinclair + May is a Femeconomy Gold Member.



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Posted by Alanna Bastin-Byrne - Femeconomy Director

CEO of the house, community builder and a globetrotting nomad. Background in Marketing and Communications leadership in the UK and Australia.