“Termination of employment is when an employee’s employment with an employer ends. Employment can end for many different reasons. An employee may resign or can be dismissed (fired). … The Fair Work Ombudsman and the Fair Work Commission regulate Commonwealth workplace laws about terminating employment”. – Fair Work
Sometimes in life, things don’t work out. This includes jobs. From time to time, and often despite best intentions from both yourself and your leader, an employment relationship may not work out and there may be a decision made to terminate your contract of employment. This can be a tough situation, however as long as the process and decision made to terminate your contract is fair, reasonable and not unexpected, there is a way to manage yourself with dignity and professionalism and help you maintain relationships with your leader and team as you leave the business. To help you do this, we have developed a set of simple principles to help guide your thinking and behaviour on this issue;
- Treat the person on the other side of the table as you’d want to be treated
- Don’t say anything until you know what to say
- You’re losing a job, nothing more, nothing less. There are others.
- Expect to be treated fairly and within the law
- Think about ‘next’ as soon as you can
There’s a bunch of laws and rules around dismissal, so if you are concerned the process and decision to dismiss you is not fair, take the time to understand the options available to you and how you may raise your concerns formally through an organisation like Fair Work Australia or the Australian Human Rights Commission.
© 2017 All rights reserved
mwah. making work absolutely human
Being terminated is never a pleasant experience, however, it can be better managed by understanding what to expect and how to best represent yourself in what is a difficult time.
Treat the person on the other side of the table as you’d want to be treated. This can be really hard for you, but it’s also hard for the other person. Give them every opportunity to do the right thing the right way. By all means, challenge ‘unfair’ and ask questions to understand, but if you treat them as you expect to be treated, you’ll be in the best possible position to navigate this in the best possible way it can be navigated. If you blow up the relationship in front of you, you’re left in a world of lawyers. If you’re still talking with your leader, you have a chance to negotiate a fair and reasonable path through a very difficult situation.
Don’t say anything until you know what to say. Being dismissed is initially embarrassing – you feel the sting of having no control over the situation, and it’s important situation because it’s such an important part of your life and it provides the financial foundation for the rest of your life. Then, you usually move to cover your embarrassment with anger. You’re tempted to lash out at the person and tell them how wrong they are. The best thing you can actually do, is to be quiet until you’ve had a chance to think. You need to think of the situation, the impact, and the future. Think then speak. Hold the emotion.
You’re losing a job, nothing more, nothing less. There are others. Being dismissed can be devastating. You can feel angry, of course, but you often expect it (from endless performance discussions, or from knowing you’ve done the wrong thing) so the anger often subsides to feelings of grief – loss of a job, loss of financial security, loss of reputation – even feelings of worthlessness. You need to think perspective. How many jobs have you had in your life? Was it the best job you’ve ever had or have you had better? Are there other jobs and other businesses you could work for? There are 8.7million jobs in Australia alone. There will be another job for you.
Expect to be treated fairly and within the law. You may be being dismissed, but you are a good person and of equal value to everyone else. Whatever the reason for your dismissal, you deserve to be treated fairly. The law provides a good set of fair and reasonable guidelines. You should expect to be treated within the law. You should expect nothing less.
Think about ‘next’ as soon as you can. Once you’ve been dismissed, you will need to find a new job. Even if you’re heading to unfair dismissal, post that, at some point, you will not want to work with the people that dismissed you and you will need to find a new job, in a new business. The sooner you start planning for that inevitability, the better off you’ll be – Emotionally and Financially. You’ll be back in control of your life, and not feeling under siege. Start thinking “next” as soon as you can. What do you need to? What options? What do you need from your current employer? Where would you rather be? Get going forward. This is your real life and don’t waste any more time on a job that isn’t working.
What is fair and unfair dismissal?
A fair dismissal is one that is expected as is a result of clear breaches of policy or failure to meet business expectations. This may be issues related to performance (not hitting targets, not producing quality work, not meeting business needs) or behaviour (bullying, lateness, poor communication).
Fair dismissal ensures that the individual involved is aware of the issues, concerns and expectations of the business, is given time and support to improve, and if improvement does not occur (or does not occur to the level required), the individual is given an escalating (potential series) of warnings. Fair means the individual was aware in advance for ongoing failure to meet expectations could result in the termination of their contract and that their employment is in jeopardy.
Fair means the process is about the person and the performance, not about their personal characteristics or factors unrelated to their performance or behaviour while at work or representing the business.
Fair Work defines unfair dismissal as being a case where the termination of the contract was;
- Harsh – the punishment didn’t fit the crime (e.g. your employment was terminated for a minor issue)
- Unjust – the punishment was not consistent with how other people in the business were treated in similar circumstances (e.g. one person being given a warning for being consistently late and you were terminated for the same behaviour)
- Unreasonable – can the expectations set actually be achieved? Are they being achieved by other team members?
- Not in line with the Small Business Dismissal code (if employed in a business of under 15 employees. See the Small Business Dismissal code in the attachments).
What is fair process?
Every business will have a slightly different approach to managing these matters, however, a fair dismissal process should include these steps;
- You are told (verbally and in writing) that you are not meeting expectations. The correct expectations are confirmed; time is provided for improvement to occur. Support is offered. A performance plan may be implemented.
- If your performance continues to not meet expectations, you will generally be issued with a written warning/serious of warnings around not meeting required standards. This process will include meetings with yourself and your Leader, where issues are openly discussed and a support person may be present (if you choose). Expectations will be reconfirmed and timeframes for improvements and measurements will be set.
How many warnings will I receive? There is no “one” answer here. You receive 2 -3 warnings for smaller ongoing issues (like missing sales targets), or you may be only provided 1 warning (a First and Final) for serious issues (like bullying, harassment etc).
What should a warning document include? if you are issued a formal written warning, this should include – the breaches that have occurred/the issues of concern, your response to these issues (captured during the investigation and disciplinary processes), why the decision has been made to issue the warning (i.e. breach of policy, impact on the team, impact on customers) and what the expectations are moving forward. For Final Warnings, you should also be advised that continued failure to meet expectations may result in the dismissal of the individual and that their employment is in jeopardy.
- Once you are at a final warning stage and an issue occurs again (or an expectation continues to fail to be met), you will be asked to “show cause” why your employment should not be terminated. This is their last chance to state your case and you raise issues, mitigating circumstances or even suggest ways you could further improve if they were given another opportunity.your Leader will consider this information, along with the issues, precedent and impact of the behaviour, and make a decision on balance around whether to dismiss you or give them another chance.
- If you make the choice to dismiss you, you would be provided notice (as outlined in your employment agreement, enterprise agreement or the National Employment Standards) and will generally be paid in lieu. Note, for summarily dismissal matters (theft, violence, drugs/alcohol, bullying, harassment etc), due to the seriousness of the issue, you may not be eligible to receive any notice,
In addition to a fair process, there are also some legal expectations around providing you “procedural fairness” throughout the overall process. Procedural fairness includes;
- The option to have a support person. This may be a friend, partner, another employee, lawyer, union rep or another party who sits in the meeting and provides you morale support by “being there”. A support person should not generally speak on your behalf. Your leader has the right to refuse a particular support person if they feel they will disrupt the process or compromise the matter, however, they will need to allow you additional time to arrange for another support person (should you wish).
- Providing no less than 24 notice of meetings to be held. Meeting notices should outline the issues to be discussed and potential outcomes of the meeting. This will provide you time and context to prepare your case and response.
- Understanding what assistance you needs from your Leader/the business to meet the expectations set and then providing this if it is reasonable.
- Communicating and confirming key discussions, expectations and outcomes (i.e. warnings, file notes, feedback) in writing to ensure the issues are clear to everyone involved in the process.
- Not predetermining the dismissal decisions. Your leader should seek to understand all the facts before making a decision to terminate your employment. They should not have decided before an investigation is completed, or that have received your response on the matter.
What to do when you feel you’re being unfairly treated?
If you feel you have been unfairly treated, talk to your Leader about it. If they are unresponsive, raise this issue (in writing) to their leader, HR or another senior leader in the business.
If these avenues do not offer you the support or review you are seeking, you may wish to formally raise the issue with Fair Work Australia via an Unfair dismissal process. More information about unfair dismissal is contained within the “becoming an expert” section.
What questions should you ask?
It is important you really understand why you are being dismissed (or are at risk of being dismissed) and what the next steps are. Ask questions like;
If I am at risk of being dismissed;
- What support is available is to me?
- How long do I have to improve?
- What should I do now to meet the expectations? What should I work on longer term?
- What are my options?
If the decision has been made to dismiss you;
- What will I be entitled when I am dismissed? Notice, payment, separation certificate.
- What could I do differently in future (in terms of my performance/behaviour) to not have this situation happen again?
- Will you give me a reference?
What timing is fair and reasonable?
Reasonable time may vary depending on the circumstances. For bullying, it is reasonable to expect the behaviour to stop straight away and never happen again (and if it happens again, expect to be dismissed quite quickly). In other instances , where an issue has been present for a long time, or you are actively seeking to improve, or if you are making improvements but not at the right speed, or the level expected, it may be reasonable to provide 2 – 6 months for the person to improve. A good test for this is “how long would it take a reasonable person to address the issue”.
Have a view on what timeframe you think is reasonable and openly discuss this with your Leader. Do they agree? If not, why? Can you negotiate a timeframe you are both comfortable with? What support may you need to meet the expectations more quickly?
If it feels like a set-up, what do I do?
Raise the issue with your leader or another senior leader or representative within the business. Ask questions about areas you are concerned about. If your business has an appeals process, seek to have another person review your case and the decision to dismiss you.
If this doesn’t work, you can raise the issue with an organisation like Fair Work Australia or the Australian Human Rights Commission. More detail is available in the “becoming an expert” section.
You know it’s fair. How to handle it?
Dismissals can be a really challenging. There is no textbook “right” response. So how do you deal with these situations well?
- Be kind to yourself. Give yourself time to process the information provided.
- Be kind to your leader or the people delivering the message. While it is tough for you to hear you are losing your job, it will also be tough for your leader to share this message with you. If your leader is caring, kind and honest with you during this process, seek to offer the same behaviour to them.
- Accept support offered to help you get on your feet again. Use an outplacement provider to help you make your resume great (or even better). Speak to a counsellor if you are having a tough time. Ask for help when you need it.
- Ask questions and make sure these are answered in a way that you feel comfortable you have all of the information you want.
- Keep it in perspective. It is not fun to be fired. But it is just an event. An event that you will move past, learn from and even be better from as a result of. Keep this in the back of your mind and when things get tough, remember there will be life after this experience.
References post being fired
If you behave in a professional, fair and kind way during the dismissal process, you will be well positioned to top maintain a great relationship with your Leader.
Openly discuss with your leader what they may be able to provide a reference around. While you may not have been successful in that role, it doesn’t mean you don’t have other great skills or strengths that your leader could take about. Agree in advance with your leader what areas they are comfortable to provide a reference for and what areas you are not.
Pros and Cons of an Exit Interview
Many businesses ask employees to complete an exit interview on their way out of the business. Exit interviews are used to understand why people are leaving the business (including trends, patterns and serious issues) so that improvements can be made to the business, team, culture and/or role. There are pro’s and con’s to completing exit interviews. Here are some things you may want to consider;
|· Get an opportunity to provide feedback in your experience.
· Can help your Leader/the business understand what went wrong and how any issues could be resolved.
|· If feedback is negative about the business, it may damage your relationship with your leader and put you at risk of not receiving a reference (you will need this)
· It can be difficult to provide balanced feedback when you feel emotion or unfairly treated. A one-sided or overall negative response may not offer the business much value.
How to do well in an Exit Interview
Be as open and honest as you can be. Focus on your whole experience with the business (rather than just the dismissal). What worked well? What was great? What was not great? Was the job you signed up for different to what you were actually required to do? Were you given the level of support needed to do their job well? Were there other factors that contributed to your dismissal from the business? Were there serious issues such as bullying or harassment that the business is not aware of?
Be professional and constructive in the process. Dismissal processes and decisions are hard for everyone involved and don’t support the business to be great. What could your leader/the business learn from your experience to ensure this doesn’t happen again in future.
Also, it’s important to think about how and when you would be most comfortable to do an exit interview. Is this with your boss before you leave the business? Is it online or via email after you have left the business? is it done face to face or over the phone with an independent party (another leader, HR)? Think about the environment you would be most comfortable to gibe feedback in and the timeframe you are best placed to do this. We would suggest doing an exit interview after you have finished with the business and have had a chance to reflect on your overall experience and have started to recover from the emotion of the dismissal process.
Remember, if you feel really uncomfortable or do not feel like you have anything constructive to add, you do not need to complete an exit interview. You can politely decline this offer and put your energy into your next steps outside of the business.
How to raise serious issues in an Exit Interview (also covered in Police work on Raising Serious Issue and Exit Interviews)
Sometimes you will have a serious issue that needs to be raised through an exit interview process. This can include issues such as bullying, harassment, fraud, sexual harassment, discrimination or other matters. Your issue may be related or unrelated to your dismissal.
Exit interviews can be a good way to formally raise these issues and ensure they are recorded. Make sure you put your concerns in writing in the exit interview process (or tell a senior leader you trust and ask them to record your concerns), remembering to provide as much detail as possible (what happened, when, who was there, evidence you may have). Provide your personal contact details that can be used to discuss the issue with you post the end of your employment, so you can provide extra details as needed.
If you are not confident that you issues will be heard and addressed if raised via the exit interview process, you make seek to raise this issue directly (in writing) with a senior person in the business you trust, or via the Australian Human Rights Commission (if the matter is related to discrimination), the Fair Work Commission (if the matter is related to bullying, harassment or other employment concerns) or via your state based Safety body.
Alternatively, you may wish to not formally raise your issues if you have already done this with limited success. You are leaving the business. These issues are no longer your issues. Learn from them, and use the new knowledge you have to make a different choice about the next kind of business you want to work with.
© 2017 All rights reserved
mwah. making work absolutely human
Hopefully, you never become an expert at being dismissed from a job, but we understand that you might want some more information about this. Here is some additional resources to help you build you knowledge around dismissals.
Want to know more about being dismissed? https://www.fairwork.gov.au/ending-employment/unfair-dismissal
Feel your termination was unfair and you want to consider making an Unfair Dismissal claim? https://www.fwc.gov.au/termination-of-employment/unfair-dismissal/eligibility
Australian Human Rights Commission – for termination issues related to pregnant employees- https://www.humanrights.gov.au/our-work/sex-discrimination/publications/pregnancy-guidelines-2001
© 2017 All rights reserved
mwah. making work absolutely human