1 November 2005
Those of you able to get home in time for Neighbours will no doubt have been puzzled by the recent story line which found Joe and Lynne Scully (who had been happily married for years) separating, and Joe ending up living on a farm somewhere in the outback of Australia… A recent newspaper article, however, shed some light on this amazing plot-line. The actor who plays Joe Scully (Shane Connor) was apparently dismissed two years ago and is now suing Grundy, the producers of Neighbours, for unfair dismissal and the wrongful termination of his contract. Whilst his dismissal is governed by Australian law, it serves as a good reminder of some unfair dismissal basics for us 'up over'.
In very simple terms, here are four steps to help you minimise the associated risk of dismissing employees:
1. Is there a fair reason to dismiss?
For a dismissal to be fair, it has to be able to fall into one of the five potentially fair reasons for dismissal, namely:
- Capability – for example, poor performance and sickness; or
- Reasons related to the conduct of the employee – for example, gross misconduct
- That the employee was redundant or
- That it would be illegal for him to continue in his position or
- "Some other substantial reason". This is a catch all phrase, and is open for an employer to argue that the dismissal was justified in all the circumstances. However, employers need to be careful – simply deciding that it is justified to dismiss someone because, say, they were unpopular, or you did not want them in a particular job, is unlikely to be enough. Dismissals in such circumstances could also carry risks of unfair constructive dismissal.
By far the most common reasons are misconduct, poor performance and redundancy.
In Mr Connor’s case the reasons cited relate to a drug problem which left him unable to act to the required standard (ahem! This is Neighbours we are talking about!). This allegedly resulted in him often being late and rude to other cast members, notably his on-screen wife Lyn.
This mixture of reasons is typical. However, employers need to be able to show which of the above reasons they are using to dismiss. If the employer is going to rely on more than one reason they need to be able to satisfy steps 1, 2 and 3 for each.
2. Has a fair procedure been followed?
In showing that the employer has been dismissed for a fair reason, an employer must have followed a reasonable procedure entitling it to have reached its decision to dismiss. For example, in dismissing Mr Connor for his time-keeping misdemeanours (misconduct), the employer must have followed enough of a procedure to show that he had been late, that this amounted to misconduct and there were no extenuating circumstances which meant that dismissal was unjustified. The investigation and dismissal procedure must also have been fair in all the circumstances.
Since October last year, employers also need to make sure that the procedure complies with the minimum standards of the DDP or risk a finding of automatic unfair dismissal.
3. Can you prove both of the above?
Even if the most wonderful procedure has been followed, this will be of limited use if it cannot be proved to the employment tribunal. By far the best way to prove that a fair procedure has been followed is to keep detailed notes of all meetings and related events and follow up with the employee in writing.
In a simple dismissal for poor timekeeping, the following documents should be standard:
- Warnings on file for lateness – including a note setting out the reasons given
- An invitation to a meeting to discuss the problem and (probably) the final event which has led to the disciplinary meeting. This letter will set out the reason for the meeting, the right of the individual has to attend and respond and his right to be accompanied
- Notes of that meeting
- Relevant witness statements
- A letter to the individual enclosing the meeting notes and setting out the outcome of the meeting, including the right to appeal if appropriate
- Notes of the appeal meeting
- Letter to the individual confirming decision to dismiss, that decision is final and dealing with outstanding payments of salary and the issue of P45.
4. Golden rule
The one Golden rule in terms of unfair dismissal is: if you are unsure, take advice. Often there will be a simple and easy way to limit your exposure to the risk of any claim… and this will save a lot of hard yakka in the future!