Substance and procedure
Two questions arise in almost every termination dispute. First, was there a valid reason connected to conduct, capacity, performance or the operational requirements of the employer? Second, was a fair procedure followed before the decision was taken?
An employer with a genuine reason may still face a successful claim if the employee was not given notice of the allegations, an opportunity to respond, and a properly conducted hearing where required.
For employers
- Establish the facts before forming a view.
- Put allegations to the employee in writing, with sufficient detail and time to respond.
- Hold a hearing where the circumstances require one, and keep a record of it.
- Ensure the decision-maker has considered the response given.
- Communicate the outcome in writing, with reasons.
- Calculate notice and final dues carefully and pay them promptly.
For employees
- Keep a copy of your contract, job description and any policies referred to.
- Preserve correspondence relating to the process.
- Respond to allegations in writing, even briefly, rather than only verbally.
- Check the computation of your final dues.
- Obtain advice promptly, as time limits may apply to claims.
Redundancy and operational reasons
Terminations driven by the operational requirements of a business carry their own procedural expectations, including consultation and notification obligations, and selection that can be objectively explained. These matters should be planned before any announcement is made.
What to do next
Whether you are contemplating a termination or have been dismissed, advice at the earliest stage is materially more useful than advice after positions have hardened. Many disputes are resolved through negotiation or mediation without a contested hearing.