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Opinion & Analysis

Why sacking staff on whim is not an option

There are outer limits on what a boss can ask for in a job contract. file photo | nmg
There are outer limits on what a boss can ask for in a job contract. file photo | nmg 

Some jobs end smoothly, and some jobs end traumatically: the law is built to be a dividing line between the two, protecting everyone from unreasonable and excessive damage.

In this, the starting point is the employment contract itself.

There are outer limits on what a boss can ask for in a job contract – a maximum number of hours, hours that must be paid extra as overtime, some minimum of time off – but so long as contracts observe these basic frameworks, from there, a job’s terms and conditions are determined individually. They are a matter of company policy. But they are legally binding.

The trouble starts when a contract isn’t observed by either side, and both sides can be at fault in this. One of the most common breaches among millennials is skipping notice. There’s rarely any comeback – hardly any employer is going to chase an employee to court after that 10am email, the day after pay day, saying they are resigning immediately and without notice.

But no-notice staff departures cost businesses dearly. Jobs half-started have to be begun again from scratch, without anyone in the loop on how far they had progressed, or what had been done.

Ironically, other systemic abuses tend to cluster around the same staff who later just disappear. In my own company, we’ve had staff who ran for months on 25 per cent fewer hours than all their colleagues, turning up for work at 11am instead of 9am, and still leaving promptly at 6pm.

The sum was a less than four-day week, and a nasty run, through the talks about time keeping, the obviously low productivity, the irritation of carrying an employee who just can’t manage the five days, but collects the five-day salary anyway. It’s hard on colleagues too, to be carrying those who are short-changing the company bill.

But whatever the breach by an employee, terminating a contract requires a set of clear actions by employers, and many go wrong in this.

The skid patch can be anger. With losses incurred, and a situation clearly running at a long distance from ideal, employers move to talk of misconduct and gross misconduct.

But it is an inherent danger ground. Usually, a job contract carries a notice period. Either the employer or the employee can trigger notice. But if a boss dismisses staff, two issues arise: is it legal? And is it fair? The law tackles both.

Legally, employers must make a choice on whether to cite misconduct, for if they do, they must be able to prove it. Better just to exercise notice without negativity, and bring a poorly functioning exchange of work-for-pay to a fully notified close.

However, if a boss is determined to go the misconduct route, they have to have served warnings officially, orally and then in writing, and the employee must, finally, be invited to show ‘due cause’ for the breaches.

Due cause means holding a meeting the employee attends with a third party of their choice, often a trade union representative or a lawyer.

The company cites the wrong-doing, the employee explains the causes and why it was not a breach of contract.

It’s a fraught process, and the law allows any company to have its own disciplinary procedures over and above this basics.

But if a company dismisses staff for misconduct without following the basics of notice and a due cause hearing, then they have surely broken the law, and can be sued.

Following due process doesn’t guarantee a dismissal will pass any test of fairness, but without the process, the whole termination is illegal anyway.

No matter how badly wrong a job contract has gone, it’s a matter of law, and the law demands a hearing for the employee, who must be heard with care and attention.

From there, the burden of proof is on the employer to demonstrate cause, and that is as it should be, for if it’s worth terminating for, it’s worth proving. Sacking people on whim is simply not an option, not for any employer.

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