Employment Law Essentials for Business Owners (Part 1): Managing Dismissals the Right Way

Velocity Legal

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Key Insights

There is no automatic “three warnings” rule. Employers often assume they must issue three warnings before dismissing an employee. What matters is whether the process is fair in the circumstances. For performance issues, that usually means clear feedback, proper documentation and telling the employee if their employment is at risk. A vague conversation about improvement may not be enough.
General protections claims can be more dangerous than unfair dismissal claims. Unfair dismissal is not the only risk when ending employment. If an employee is dismissed shortly after making a complaint, taking sick leave or exercising a workplace right, the employer may face a general protections claim. Timing and documentation are critical because a routine termination can become much harder to defend if the reason for dismissal is unclear.
Complaints and performance issues should be managed separately. An employee under performance review may raise a bullying complaint or counter-allegation. That does not mean the performance issue disappears, but employers should avoid blending the two processes. Separating the performance process from the complaint process, and using different decision-makers where appropriate, can help maintain procedural fairness and reduce legal risk.

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Dismissals rarely become risky because of one conversation. The risk usually builds through unclear expectations, undocumented warnings, poor timing, unresolved complaints or uncertainty about why the employee is being dismissed.

When performance issues arise or an employment relationship breaks down, the way an employer manages the process can be the difference between a clean exit and a costly claim.

In this episode of Explain That by Velocity Legal, Andrew Henshaw is joined by Jess Hill and Katherine Stewart to discuss how employers can manage dismissals, minimise legal risk and maintain professionalism when dealing with performance issues, misconduct or workplace complaints.

The discussion covers:

the difference between performance-based dismissals and conduct-based dismissals;
why performance issues often require structured feedback and documentation;
why employers do not necessarily need to issue three warnings before dismissal;
the importance of clear warnings that employment may be at risk;
the difference between unfair dismissal claims and general protections claims;
why timing matters where an employee has made a complaint, taken leave or exercised a workplace right;
when a commercial resolution, transition package or settlement deed may be appropriate;
how employers should respond when a performance process is met with a bullying complaint or counter-allegation;
why senior employees can still bring legal claims even if they are above the unfair dismissal income threshold;
the role of employment contracts, policies and procedures in reducing dismissal risk; and
why employers should act quickly when serious conduct issues arise.

A practical discussion for business owners, directors, managers, HR professionals and advisers dealing with employee performance issues, misconduct, complaints, termination risk or workplace claims.

For advice on dismissals, performance management, workplace investigations, unfair dismissal claims or general protections risks, contact Velocity Legal’s Employment team.

This podcast in no way constitutes legal advice. It is general in nature and is the opinion of the author only. You should seek legal advice tailored to your individual circumstances before acting on anything related to this podcast.

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