Disciplinary and Termination in Australia:

An escalating story in the Australian media has brought the issue of unfair dismissal back to the fore. As always, these cases remind employers how vital it is to ensure termination procedures are correctly followed, thorough reporting is carried out and healthy internal communications are maintained.

As reported in the Mercury newspaper, Tasmania’s Premier Will Hodgman has denied misleading state parliament over his role in the sacking of the Cricket Tasmania employee Angela Williamson. Williamson is pursuing an unfair dismissal case which alleges that the Premier and his health minister, Michael Ferguson, complained about social media comments she made taking an angry public stance against government abortion policy.

Ms Williamson claims she was told by Cricket Tasmania’s chief executive that the Premier was lying to her with his claim that he had no input in her sacking. Hodgman and Cricket Tasmania have repeatedly refuted that Williamson was fired at the Premier’s request – including in an off-the-record SMS sent directly from the Premier to Williamson, made public in her dismissal claim.

Her former boss argued in a statement that Williamson’s social media comments were in breach of the main obligations of her position: “We stand firm that Angela neglected key requirements of her role as government relations manager to facilitate a strong relationship with the Tasmanian government.”

Williamson used expletives in a Tweet about an abortion speech by Mr. Ferguson, describing it as the “most irresponsible, gutless and reckless delivery in parly (sic) ever”. The wording of her unfair dismissal claim asserts the Cricket Tasmania board decided her role was no longer tenable “purportedly due to the views of Mr Ferguson…and William Hodgman…about the 14 June Tweet”.

Termination Procedures in Australia

The publicity around this case brings the risks attached to improper termination into the consciousness of the business world. Employers can lawfully dismiss an employee if it is a genuine redundancy or if the dismissal would not be considered harsh, unjust or unreasonable – or if the dismissal is consistent with the Small Business Fair Dismissal Code, a separate set of rules for businesses with less than 15 employees.

When Fair Work Australia considers whether a dismissal is harsh, unjust or unreasonable, they consider a range of factors including:

• if there’s a valid reason for the dismissal relating to the employee’s conduct or capacity
• if the employee is notified of the reason and given an opportunity to respond
• if the dismissal relates to unsatisfactory performance, then whether the employee is warned about it before the dismissal.

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission decides on cases of unfair dismissal – employees must apply to the Commission within 21 days after their dismissal takes effect if they wish to make a case.

Serious misconduct is when an employee causes serious and imminent risk to the health and safety of another person – or to the reputation or profits of their employer’s business, or deliberately behaves in a way that is incompatible with continuation of their employment. Examples of this include theft, fraud, assault, being drunk at work or refusing to carry out work duties.

What this means in an Employer of Record scenario

Employee disciplinary and termination procedures are amongst the most important legal considerations of the Employer of Record service, as there are large fines for non-compliance. This is not limited to termination of a worker’s employment but to disciplinaries as well – scenarios could present as follows:

• a review of the probationary period;
• a disciplinary due to non-performance or other examples of misconduct; or
• a termination to transfer the worker back to the end client’s direct employment once their entity set-up is complete.

Any of these scenarios can result in claims against the employer and/or end client if handled incorrectly. In any disciplinary or termination case, it is vital to report any decisions or actions involving an employee immediately to the Employer of Record, in order that appropriate advice can be given.

For example, a local line-manager may terminate an employee due to unsatisfactory performance without first advising the Employer of Record. As the local labour law’s disciplinary and termination procedures have not been followed, the terminated employee has the right to file a grievance. This action can lead to court proceedings and prove to be very costly for the client and the Employer of Record alike.

It is therefore imperative that constant contact on employee relations is maintained between the Employer of Record and the end client, mainly to ensure any actions or terminations are carried out in line with local legislation.

Key Learnings:

How the Cricket Australia/Tasmanian Premier case will play out is as yet unclear – but there are certainly some key education points that HR and global mobility managers should take away:

1. Maintain as healthy and professional a rapport as possible between all parties – being drawn into a public dispute can add fuel to the fire of an unfair dismissal/disciplinary claim.
2. Communications on any disciplinary or termination situation should be on-the-record, immediate and continued throughout the process, especially where a third-party supplier like an Employer of Record is involved.
3. Follow laws around termination and disciplinary to the letter to avoid fines. If you are managing an Australian-based employee from overseas, be mindful that local laws may not be the same as your own – seek professional advice if the scenario is unclear.
4. Record and report everything – within legal boundaries. If you are audited in the event of an unfair dismissal claim, the information in these records will be invaluable. Ensure your administration of the disciplinary/termination meets local employee data protection legislation, or it could be deemed inadmissible.

If you are looking for advice on termination, compliance, local labour law or Employer of Record scenarios in Australia, please contact our Australian representative, Sales and Business Development Consultant Ashleigh Duncan:

M: +61424396194
E: ashleigh.duncan@mauvegroup.com