Code of Good Practice: Dismissal

Modified version of draft as proposed by GilesFiles: 15 February 2025

Part A: Introduction

  1. Purpose
  2. Interpretation
  3. Small Businesses

Part B: Dismissal
4. What Is Dismissal?

Part C: Fair Dismissal
5. What Makes a Dismissal Fair?

Part D: Conduct
6. Disciplinary Measures
7. Serious Misconduct
8. Deciding Fair Decision
9. Dismissal
10. Consistency
11. Fair Procedure
12. Strikes and Dismissal
13. Disciplinary Records

Part E: Probation
14. Probation Requirements
15. Purpose of Probation
16. Probation Period
17. Guidance During Probation
18. Deciding Not to Confirm Employment

Part F: Capacity
19. Poor Performance After Probation
20. Guidelines for Poor Performance Dismissals
21. Ill Health or Other Capacity Issues

Part G: Operational Requirements
22. What Are Operational Requirements?
23. Fair Retrenchment
24. Retrenchment Process

Part A: Introduction

  1. Purpose
    This guide helps employers, employees, and others understand how to apply the law when dealing with dismissals for poor behaviour, lack of ability, or business needs.
  2. Interpretation
    • The guide is flexible because every situation is unique.
    • Employers and employees should treat each other with respect. Employees deserve fair treatment, and employers have the right to expect good behaviour and performance.
    • The guide doesn’t change rules in existing agreements between employers and employees.
  3. Small Businesses
    • Small businesses aren’t expected to meet the same standards as large companies when handling dismissals.
    • Those judging dismissals should consider the limitations small businesses face, like fewer resources for investigations or formal processes.

Part B: Dismissal

  1. What Is Dismissal?
    • Dismissal happens when an employer ends an employee’s job, with or without notice.

Part C: Fair Dismissal

  1. What Makes a Dismissal Fair?
    • It must have a good reason (e.g., employee misconduct, poor performance, or business needs) and follow a fair process.
    • Some dismissals, like firing someone for being pregnant or going on a legal strike, are automatically unfair.

Part D: Conduct

  1. Disciplinary Measures
    • Discipline helps employees understand workplace rules and improve behaviour.
    • Small businesses may use simpler methods, while larger businesses may have formal rules and written procedures.
    • Minor issues can often be resolved informally. For more serious or repeated infractions, warnings or dismissal may be necessary.
  2. Serious Misconduct
    • Employees can be dismissed for severe misconduct that makes it impossible to continue working together.
  3. Deciding Fair Decision
    When deciding if dismissal is fair, consider:

    • If the employee broke a valid workplace rule.
    • If they knew about the rule and its importance.
    • The harm caused by the violation and whether dismissal is the appropriate response.
  4. Dismissal
    Dismissal is appropriate if the employee’s behaviour makes the working relationship unbearable.
  5. Consistency
    Employers should treat employees consistently when applying discipline or dismissal.
  6. Fair Procedure
    • Employees must be informed of the allegations, given time to respond, and allowed representation if desired.
    • Formal investigations aren’t always needed, especially for smaller businesses.
    • Any deviation from these guidelines must be justified.
  7. Strikes and Dismissal
    • Employees can’t automatically be fired for striking. The fairness of dismissal depends on the strike’s circumstances.
  8. Disciplinary Records
    Employers should keep detailed records of all disciplinary actions.

Part E: Probation

  1. Probation Requirements
    Employers can use probation to evaluate new employees’ suitability.
  2. Purpose of Probation
    Probation allows employers to assess performance, but it must not be misused to avoid offering indefinite employment.
  3. Probation Period
    The probation period should be reasonable and tailored to the job.
  4. Guidance During Probation
    Employers must support employees during probation, offering training or feedback to help them succeed.
  5. Deciding Not to Confirm Employment
    Employers must give employees a chance to share their side before deciding to dismiss or extend probation.

Part F: Capacity

  1. Poor Performance After Probation
    Employees shouldn’t be dismissed for poor performance without training, guidance, and time to improve.
  2. Guidelines for Poor Performance Dismissals
    Dismissal is only fair if:
  • The employee failed to meet clear, achievable performance standards.
  • They had a fair chance to improve.
  1. Ill Health or Other Capacity Issues
  • If illness or injury affects an employee’s ability to work, employers must explore alternatives like adapting duties or finding another role.
  • Dismissal should be a last resort, especially for work-related injuries.

Part G: Operational Requirements

  1. What Are Operational Requirements?
  • Dismissals for business needs (like financial difficulties or technological changes) are called retrenchments.
  1. Fair Retrenchment
  • Retrenchments must be a last resort and based on genuine business needs.
  1. Retrenchment Process
  • Employers must consult affected employees or their representatives, provide written notice, and explore alternatives before making retrenchments.