We’ve all heard of the “three strikes, and you’re out” rule. Some say “one mistake, and you are out”. When it comes to employers, the law says the rule can change depending on the nature of the misconduct or mistake. ‘No shows’ are ones where the employer should give the employee chances to improve before terminating.
What are ‘no shows’ under the Fair Work Act 2009 (Cth)?
The Fair Work Act 2009 (Cth) (‘FW Act’) distinguishes between ‘underperformance’ and ‘serious misconduct’. An employee underperforms or shows poor performance when they are not doing their job correctly or behaving unacceptably at work. The Fair Work Ombudsman (‘FWO’) says an employee underperforms if they are:
- not fulfilling their responsibilities and completing work to the requisite standard;
- not adhering to workplace policies or procedures; and
- engaging in unacceptable, disruptive or damaging behaviour at work such as telling inappropriate jokes or consistently speaking negatively about the company.
‘Serious misconduct’ occurs when an employee poses a serious and imminent risk to the health and safety of others, the company’s reputation or profits. As a result, an employer can terminate an employee who engages in serious misconduct. Examples from the FWO include:
- refusal to carry out work responsibilities; and
- intoxication at work.
‘No shows’ or not turning up to work fall under ‘underperformance’ and may lead to a termination of employment. However, the emphasis is placed on the word “may” because the employer must examine the reasons for the ‘no show’ and complete specific steps before termination.
1. Identify your rights
The FW Act outlines the minimum standards and entitlements of an employee. These include:
- parental leave (up to 12 months’ unpaid leave);
- annual leave (4 weeks’ paid leave per year);
- personal leave (10 days’ paid leave per year); and
- community service leave (unpaid leave for voluntary emergency management activities).
An employer cannot terminate an employee if they have legitimate reasons and statutory rights. Therefore, employers cannot terminate employees for exercising their rights and entitlements. Yet, an employer may legally terminate an employee if he or she does not show up to work without notice or cause.
2. Have a private meeting (optional)
An employer and employee can meet privately to discuss ‘no shows’ or underperformance. A meeting allows the employer to voice their views and listen to the employee’s concerns. During the discussions, both parties should reach a solution. The solution should outline steps for improvement and consequences if the employee fails to improve. In addition, these meetings should be documented and signed by all parties. Here is a meeting template.
3. Formal warning(s)
Employers are not required to issue a set number of formal warnings before termination. The letter of warning must clearly state the reasons for the notice, expectations about what needs to change and say that the warning is reasonable and fair.
If the employee does not improve, the employer can:
- another meeting;
- adjust the employee’s responsibilities; or
- issue a final warning.
Before terminating, the employer must refer to the employment contract, relevant award and the National Employment Standards in the FW Act to determine:
- the appropriate method of handing the notice of termination;
- the notice period;
- how to terminate; and
- final pay.
Dismissing in breach of the Fair Work Act
If an employer dismisses an employee while breaching the FW Act, the employee may bring an unfair dismissal claim. During the hearing, the Fair Work Commission will consider this breach(es) in their judgement.
How can I prepare to manage ‘no shows’?
Under statutory provisions, the public sector must follow specific procedures before disciplinary action takes place. There is no requirement for the private sector. However, it is common for many businesses to have formal policies and procedures to manage the employers and employees. These are called performance management policies which outline codes of conduct, investigation procedures, monitoring and evaluating work performances. To include policies and procedures, an employer should expressly refer to them in the employment contract or enterprise agreement. If it is not included, the policy may have some contractual force.
Note: It is also essential that you have other workplace policies that are relevant to your business
Need further assistance?
If you are interested in setting up a performance management policy, we can help create one for you. If you require clarification on how to manage ‘no shows’ or workplace policies, it may be wise to contact our lawyers.