To sack or not to sack?

Firing someone is rarely easy, for the employer or the employee. It is important to know where you stand as an employer to avoid claims of unfair dismissal or discrimination.

Generally speaking, under the current legislation in this area, a worker cannot file a claim for unfair dismissal when they are within their ‘probationary period’ which is set at six months. That said, workers can still make a claim of discrimination if terminated within their first six months of employment, therefore it is important to be clear and fair when taking action to avoid complaints leading to workplace investigations.

Employers should ensure they clearly communicate their reasons for terminating a worker. Where a worker is let go early on in their employment the worker may feel they have not been given an adequate chance to perform well. Providing a comprehensive induction or on boarding program can help workers to ‘hit the ground running’, alongside job descriptions and information provided to workers that clearly sets out the expectations of their roles.

Should termination be decided upon based on poor initial performance, this process and documentation will help an employer to explain where requirements were not met. Helping a worker to understand why they were not successful can also mitigate the risk of them interpreting their termination as discriminatory or feeling they have been a target of workplace bullying. If not handled well, a disgruntled worker may make a complaint requiring a time-consuming and costly workplace investigation.

Some workers may not know that they could be terminated quite easily within their first six months in the role, and may not be aware of their probationary status. Being clear about the probation period and its purpose for both the employer and the worker could encourage a worker to perform well and also to assess whether the position is right for them. It is clearly preferable for a worker who is underperforming and struggling to fit in to the team to decide to leave on their own. Understanding probation could also help to alleviate the shock a worker may feel when faced with the sack.

For more information about probationary periods and termination read our factsheet.