Dismissal process plan: misconduct
| Employer | [Employer name] |
|---|---|
| Employee | [Employee name] |
| Prepared by | [Your name] |
| Business size | Fewer than 15 employees (small business employer) |
| Unfair dismissal | Protected from unfair dismissal |
The employee has completed the 12-month minimum employment period and an award or enterprise agreement covers them (s 382). The dismissal must not be harsh, unjust or unreasonable (s 385, s 387).
Steps and suggested dates
- Day 1: Work out what is alleged. Write down the specific conduct, when and where it happened, who saw it and the policy or standard involved. Collect the evidence before you speak to the employee, and keep an open mind about the outcome.
- Day 1: Decide about suspension. If the employee’s presence at work is a safety or investigation risk, consider suspension on full pay while you look into it. Tell them in writing that it is not a finding.
- Day 2: Put the allegations in writing. Give the employee each allegation with enough detail to answer it (a show cause letter), the evidence you rely on, a reasonable time to respond, and the option of a support person at any meeting.
- Day 6: Hear their response. Meet if they want to. Listen, ask questions, and check anything new they raise, such as witnesses or a medical or personal explanation.
- Day 8: Decide on the evidence. Decide whether the conduct happened (on the balance of probabilities) and whether it is a valid reason for dismissal, or whether a warning is the proportionate outcome. Consider their record, length of service and any explanation.
- Day 9: Tell them the outcome. If you dismiss, meet to tell them, with the support person if they want one, and confirm in writing: the reason, the last day, and notice or payment in lieu. Dismissal without notice is only for serious misconduct.
- Day 10: Final pay and records. Pay everything owing (wages, unused annual leave and loading if applicable, notice or payment in lieu). Give a separation certificate within 14 days if asked. Keep all records for 7 years.
The dates are a suggested pace, not legal deadlines. Allow more time where the facts are complex, the employee is unwell or on leave, or they ask for a reasonable delay to arrange a support person.
Small Business Fair Dismissal Code
If you follow the Code, a dismissal is deemed fair (s 388). Keep evidence for each point:
- Dismissal without notice: you believed on reasonable grounds that the conduct was serious enough to justify immediate dismissal (the Code names theft, fraud, violence and serious breaches of safety procedures). Reporting an allegation of theft, fraud or violence to police, on reasonable grounds, is sufficient but not essential.
- Otherwise: you told the employee the valid reason, based on their conduct or capacity to do the job, why they were at risk of dismissal.
- You warned them, verbally or preferably in writing, that they risked dismissal if there was no improvement, let them respond, and gave them a reasonable chance to fix the problem (for example with training and clear expectations).
- In discussions where dismissal was possible, they could have another person present to assist (not a lawyer acting in a professional capacity).
- You kept evidence: the completed Code checklist, written warnings, a statement of termination or witness statements.
Checkpoints
- Never decide before hearing the employee: the reason must be put to them and they must have a real chance to respond (s 387(b)–(c)).
- Don’t refuse a support person at a meeting about dismissal (s 387(d)).
- Check the reason has nothing to do with a protected attribute, a complaint or inquiry, a workplace right, or a temporary absence for illness or injury (general protections, Part 3-1).
- If dismissed, the employee has 21 days after the dismissal takes effect to apply to the Fair Work Commission for unfair dismissal or general protections (s 394(2), s 366(1)). Unfair dismissal compensation is capped at $95,050 (or 26 weeks’ pay if less) for dismissals from 1 July 2026.