Not every person who joins your team will work out well. As a consequence, dismissal is part of working life.
Your ability to let someone know they’ve lost their job – that they’re being fired – in a way that is respectful, fair, and keeps them whole, is a really important leadership skill. It means that when you make the tough decisions, you can also execute them in a good way.
There’s a bunch of laws and rules around dismissal, of course, but more importantly, there’s a very human approach to this very tough situation. We suggest you think through these principles and then make sure you know the legal rules.
- Treat the person as you’d want to be treated
- Dismissal should never be a surprise, nor should it torture or a game
- They’re exiting them from the business, they’re not leaving the island
- Everyone on the team is watching, and they’ve been watching for a while
- Sit above on the law.
Through this approach, you will be able to make the best of a tough situation for all involved and be able to move forward in a way that minimises harm to the individual, yourself, the broader team and the business.
© 2017 All rights reserved
mwah. making work absolutely human
Here’s those principles from earlier explained in a little more detail;
Treat the person as you’d want to be treated
Culture is not just the way you celebrate or achieve greatness together. It’s also about how you treat people when everything has gone wrong. As you face a person you’re going to fire, lose your frustration, anger, tiredness, and discomfort, and concentrate on them. You are the only person who will get them through this very difficult situation in reasonable shape, and you need to do everything you can do that. Imagine you’re in their shoes and treat them as you’d want to be treated.
Dismissal should never be a surprise, nor should it torture or a game
Dismissal is the result of either performance that just isn’t good enough, in which you will have been talking about, coaching about it, and offering any support you can for some time, or it’s the result of behaviour that is below the line, in which case that line was always clear. So, when you’re about to dismiss someone, there should be no surprises. In fact, they should be expecting it.
It also should not be torture. The decision is made. It’s yours. Own it. Be clear. Don’t drag it out in a confusing or rambling way.
And it should never be a game. This is real life. Don’t pretend to be coaching, or managing performance, and really be setting up a dismissal. Don’t pretend. Be honest and real and fair.
They’re exiting them from the business, they’re not leaving the island
It’s really important to keep perspective. You’re dismissing a person from your business, and they’ll leave the business, and they’ll move on with their life and hopefully get another job and go on to be happy and successful somewhere else. You need to care about that. In a few weeks’ time, after the dismissal, you will see them at the supermarket. You will see them at your kid’s soccer game. You’ll walk past them in a local restaurant. You want to feel very very confident that you did the right thing, the right way, and then walk up to them and genuinely ask how they’re doing. They are your equal as a human being, and you’re not the boss any more.
Everyone on the team is watching, and they’ve been watching for a while
Some of the greatest advice about dismissal is that by the time the boss makes the decision, everyone else has known for a year. That might be an exaggeration in some instances, but it’s generally true that, if you’re fair and been working on the issue for a while, then everyone knows already. They probably work closer with this person than you do. Now, as you dismiss them, everyone is watching. Are you fair? Respectful? Discrete? Are you caring? Are you doing the right thing? And they’re watching because they have to keep working with you, and also because somewhere in the back of their head, they’re thinking ‘it could have been me’, and they want to know that if it was, or ever is, that they’ll be treated properly.
Sit above on the law.
There’s so much fuss and bother about the law. The reality is that its fair. It’s reasonable it’s it’s been built on a thousand examples of fine tuning ‘fairness’ for everyone over many years. If you don’t like the law, then get into politics or public office and change them. Til then, as a leader, you need to apply the law. Not within a whisker, but absolutely transparently and with good intent. To keep your business (and yourself) safe – from not only lawyers but also bad press and reputational damage in the community – you need to sit well and truly above the law.
What is ‘fair 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.
What is ‘unfair dismissal’?
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. the person 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 for given a warning for being consistently late and another had their employment contract 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).
Non-compliance with good dismissal process (see below) can also be viewed as unfair, so follow and document the process carefully to manage this risk.
All this aside, and most importantly, follow a fair dismissal process to do the right thing by the person, by the team and by the business. if you are genuine, honest and kind in the process, you are well placed to ensure your process is sound.
See the additional Unfair Dismissal information in the “becoming expert” section.
What is ‘adverse action’?
Adverse action is another type of claim an employee can raise if their employment is terminated. This is about a business making an “adverse” decision about an individual’s employment (such as terminating them) due to them exercising a workplace right (being on parental leave, being on personal leave, being a member of a union etc). This risk is logically easier to manage as it is really clear that termination for factors unrelated to a person’s behaviour and/or performance are not relevant and therefore should not be considered in a dismissal decision making.
Many leaders and businesses shy away from dismissal decisions because they are scared of the legal risk and consequences of getting it wrong. Dismissal is a legalistic process. And every case involves some element of risk. But so does everything we do in life. The focus is here is to do the “right thing” and trust that in most occasions, this will be respectful of the person and team protect you/the business from legal risk.
A fair dismissal process looks like this;
- The individual is told (verbally and in writing) that they 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 the performance continues to not meet expectations, the individual will generally be issued with a written warning/serious of warnings around not meeting required standards. This process will include meetings with the individual and their manager, where the issues are openly discussed and support person may be present. Expectations will be reconfirmed and timeframes for improvements and measurements will be set.
How many warnings should I give? There is no “one” answer here. You may provide a few (2 or event 3) warnings for smaller ongoing issues (like missing sales targets), or you may only provide 1 warning (a First and Final) for serious issues (like bullying, harassment etc). Look at the seriousness of the behaviour and the consequences. Look at why the issue occurred (lack of skill or lack of motivation of the person to do the right thing). On balance, make a decision about what the appropriate consequences are for the action.
What should a warning document include – if you have decided to issue a formal written warning, this should include – the breaches that have occurred/the issues of concern, the person’s response to these issues (captured during any investigation and disciplinary processes), why you have made the decision 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 clear 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 a reasonable expectation continues to fail to be met), you will meet with the individual to discuss the issues and seek their response. In this meeting you will need to ask the person to “show cause” why their employment should not be terminated. This is there last chance to state their case. They may raise issues, mitigating circumstances or even suggest ways they could improve if they were given another opportunity.As a leader you will need to consider this information, along with the issues, precedent and impact of the behaviour, and make a decision on balance around whether to dismiss the individual or give them another chance.
- If you make the choice to dismiss the individual, you will provide notice (as outlined in their employment agreement, enterprise agreement or the National Employment Standards) and generally pay this out to the person in lieu so they can finish up on the day their contract is terminated. Note, for summarily dismissal matters (theft, violence, drugs/alcohol, bullying, harassment etc), due to the seriousness of the issue, you may not be required to pay the individual notice at all.
In addition to a fair process, there are also some legal expectations around providing the individual “procedural fairness”, which are simple, reasonable and make sense. They are also important to the process and need to be observed. This includes;
- Offering the individual involved the opportunity to have a support person. This may be a friend, partner, another employee, lawyer, union rep or other party who sits in the meeting and provides morale support by “being there” for the person. A support person should not generally speak on behalf of the individual involved, however sometimes they can be quiet useful in supporting the process if the individual cannot speak English, is very emotional or is having trouble reasoning what is required.
As a leader, if you are concerned about the impact of a support person (i.e. they may become emotional or aggressive themselves and disrupt the process; they may be a team member and should be not aware of the details of the matter), you can reasonably refuse to allow the individual to bring them to the meeting. If this occurs, openly and honestly explain your reasons and give the individual time to find another support person. Note: this should only occur in rare circumstances where the support person is genuinely likely to derail the process.
- Provide no less than 24 notice of meetings to be held. In these notices, outline the issues to be discussed and potential outcomes of the meeting. This will provide the employee adequate time and context to prepare to respond or defend themselves if they feel it is unfair or lacks context or detail.
- Make sure the person knows their employment is in jeopardy prior to dismissing them. This may be communicated in earlier warning letters and supported via the ‘show cause’ process outlined above.
- Ask and understand what assistance the individual needs from you/the business to meet the expectations set and provide this where you reasonably can.
- Provide reasonable time for the person to improve. Reasonably 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, dismissing in a timely manner). In other instances though, where an issue has been present for a long time, or an individual is actively seeking to improve, or if improvements are being made just not at the speed or level expected, it may be reasonable to provide 3 – 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”.
- Communicate and confirm key discussions, expectation and outcomes (i.e. warnings, file notes, feedback) in writing and ensure a record of where the matter is at, and issues being work on are clear for everyone involved.
- Do not predetermine dismissal decisions. The reason you go through the process above is to understand the matter from all sides and then to make a balanced decision on the best path forward using all of the information available. Do not go into a show cause or disciplinary meeting with a termination letter ready. This shows you are not considering their responses and any additional information they may provide, thus negating the effectiveness of the overall process.
Firing someone and keeping them whole
Sometimes, individuals and roles do not work out. This could be due to capability, challenges outside of work, personal issues, issues within the team or business, the ambitions of the individual or even their stage in life.
While exiting an individual from a role can be hard, it does happen and is something you will need to continue to deal with if you want to manage people on an ongoing basis over your working life.
Just because an individual is losing their job though, doesn’t mean they are a bad person, or completely incompetent or would not be good in a different role with a different business. Importantly, the departing individual will leave the business and continue to exist. They will still see friends and family. They will most likely get another job. This is why leaders need to ensure that termination processes address the problem (and remove the person from the role) but keep them feeling like they are worthy of other opportunities and that they have value in the world. How can you do this as a leader;
- Be kind in your dealings with them. You don’t need to tell or be terse for the individual to know they are fired. Be gentle and generous in your dealings with the person, while remaining clear and factual about the message and outcomes.
- Discuss positive areas with the person that you may be able to provide a reference for. The person may be poor at generating new business opportunities but great at building relationships with customers. Have this open conversation and agree in advance what areas you can honestly and positively provide the individual a reference for.
- Understand how you can best support the person during what will be a difficult process. Provide access to a counselling service. Help connect them to job search agencies. Ask what the individual needs, and if it is reasonable (which it almost always will be), seek to provide this to them or help connect them to this outside of the business.
- Discuss how the individual may tell the key people in their life they have been fired. Help them plan this out. What to say. What is plan B if it doesn’t go well? How can they help address the concerns of the people in their life?
- Work with the person to plan their next steps. This may be a brief discussion, but even if it’s just helping the individual get the next 3 – 4 steps right in their head, it can be a great way to support them to rebuild themselves as quickly as possible.
Talking about someone who’s been fired within the team
Talking to the team about a fired employee can be tough. As outlined in the principles above, by the time you have taken action and ended the individuals employment contract, the broader team have known about the issues and have been expecting the outcome for a long period of time.
Seek to be as honest with the team as you can be without going into too much detail or personal information about the person leaving. Don’t be disrespectful to the person either. The team will actually be watching to see how you treat people who leave, as they’ll be realistic enough to know that no everyone in the team will work in your business or team for the rest of the career.
This may be speaking in general statements like – “ Daisy has left the business. We have been working through some issues and we have decided to part ways”. This communicates the reason for exit clearly to the team, without going into unnecessary or even emotional detail that will not add value to the team (or your relationship with them) moving into the future.
Encourage team members to approach you directly if they have any specific questions and take the time to address any rumours or fears that are not correct (things like other people in the team being at risk of having their contract of employment terminated).
If possible, seek permission with the departing individual before they leave to share their contact details with the team to help them keep in contact and to importantly not presented this employee does not exist anymore.
Dealing with your personal stress of dealing with firing someone
Firing someone on your team doesn’t feel great. And it shouldn’t. It is a big decision to terminate an individual’s employment contract and is one that should be taken seriously.
As a leader, firing someone can cause a great deal of personal stress and emotion for not only the individual but for you as well. This can often be compounded as the individual impacted and the broader team will look to you for guidance and support during a difficult time, sometimes making it hard to commit time and energy to managing your own emotions with the situation. So how do you handle this?
Firstly, if you have been aligned to the principles outlined above, and have conducted a fair and reasonable process you can feel better. Not from a legal protection point of view (although good practice will minimise legal risk), but from a personal fairness and peace of mind point of view. This means you set expectations with the person. Provided time and support for them to improve. Made sure the decision to terminate their employment was not a surprise. Doing the “right thing” by the individual and the process will help you manage your personal stress.
You should also seek help from your own support. This may be your Leader, HR or a colleague within the business who you can share and debrief your experiences with, seek guidance and also check in you’re ok during difficult times in the process. Just because you are a leader doesn’t mean you have no emotions, so make sure to reach out and get support. If there is no one in the business you can discuss the matter with (due to confidentiality or existing relationships), seek counselling or emotional support outside of the direct business. This may be through your GP, a private counsellor or even through organisations such as Beyond Blue or Headspace.
Finally, try not to take on all the responsibility for the individual not keeping their role. If you have done everything correctly and fairly (in terms of principles and process), then there is only so much you can do to support a person. Sometimes a job or a workplace just doesn’t work for every person. They have to make the effort to meet the expectations set, or face the outcomes (which would have been clearly outlined) that result in not meeting requirements. Remember, while you can guide, coach, support and enable, you can actually “make” another person does anything, they need to make this decision themselves. Don’t take on the guilt for the overall dismissal. Instead reflect on what you can learn in future and invest your time in supporting the remaining team and not making the same mistakes again.
How to conduct 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.
While in the case of a dismissal the employee may not have made their own choice to leave the business, they still may have feedback of view points that are important to capture to help the business achieve better people outcomes in future. Was the job the individual signed up for different to what they were actually required to do? Were they not given the level of support needed to do their job well? Were there other factors that contributed to their lack of success in the business? Were there serious issues such as bullying or harassment that the business is not aware of?
As a leader, we need to be ready to understand the view point of the exiting employee, even if they are upset or even angry when they leave the business.
So we agree, exit interviews are important and valuable. But how do you conduct an exit interview when the individual is leaving in what may be difficult circumstances? Here are some ideas;
- Explain to the individual why completing an exit interview is important and how the information is used.
- Encourage the individual to complete an exit interview and understand and address any concerns or hesitations in doing this.
- Give the individual a choice of how to do the exit interview. This may be with you directly, online, in writing (via email/hard copy) or with another ide dent party (another leader, HR etc). The individual can be given a choice to complete the interview while still employed with the business or ideally, after they have finished their employment and have had an opportunity to recover from the emotion and reflect on the overall experience.
- If the individual is adamant they do not want complete an exit interview, respect this and let it go.
© 2017 All rights reserved
mwah. making work absolutely human
We hope you do not have to become an expert in dismissal, however here are some extra resources to help you if you need more information;
More about the legal side of the process and unfair dismissal
Information about unlawful termination
Information about Adverse Action
Small Business Checklist on Dismissal from Fair Work Attached below.
Dismissal Checklist (we know it’s a long checklist, but we figure as you are considering taking someone’s job, you are keen to fully consider all the information available to you).
Example Dismissal Letter
© 2017 All rights reserved
mwah. making work absolutely human