Capacity relates to the employee’s ability to perform the inherent requirements of the job. To rely upon capacity as a reason for termination, the core duties of a position should be compared against the employee’s ability to perform those duties. Evidence should exist to attest to the lack of capacity, and reasonable alternatives considered to termination.
Reasons related to conduct can range from serious contraventions of workplace health and safety obligations to serious misconduct. There must be evidence that the conduct occurred. You should then assess whether termination is fair or whether a lesser form of disciplinary action is more appropriate.
In cases of persistent poor performance of duties, the employee should be notified of the precise issues, given an opportunity to respond and generally provided with a reasonable period of time to improve. There should be prior warning that continued poor performance may result in termination.
Genuine redundancy may constitute a valid reason if it can be demonstrated that a position is no longer required to be performed by anybody, consultation with the employee has occurred, and acceptable redeployment options considered and offered.
Termination Pursuant to Employment Contract
The employer may terminate provided the employment contract contains a mutual notice of termination clause, and provides for the same or more generous notice period than required by the National Employment Standards.
Termination of any employment is always a serious issue, often involving complex legal issues and heightened by emotion and stress on both sides. Expert legal advice is required.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
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