Kristin Ramsey, HR Law
Kristin Ramsey, HR Law

It's a common mistake for employers to think they can dismiss employees during their probation period without implementing a procedurally fair process, says a workplace lawyer.

Procedural fairness is imperative when dealing with performance management, misconduct, investigations and terminations regardless of an employee's service period, HR Law practice group leader Kristin Ramsey stresses in an HR Daily Premium webcast.

Employees who are sacked during probation on performance grounds, but not provided with any performance management and simply handed a termination letter, for example, can easily seek recourse, Ramsey says.

"It's very easy then for that employee to go and say, 'You know what, this termination is really because I raised a complaint about the way my manager spoke to me the other week', or 'I raised a complaint about how you don't have a workplace health and safety policy', or 'I raised an issue about the way you're paying people'. And they'll go off and make a general protections claim."

Employers can argue the dismissal was because of poor performance, but will be asked "where's your evidence to support that? What discussions have you had with them about their performance? What opportunity did you give them to respond to those issues? What process did you follow in making the decision to terminate?

"If you haven't followed any of these processes, then you're not going to be able to discharge that onus of proving those things and the employee may very well be successful in attributing to you a motive for termination that didn't exist."

While general protections don't require employers to follow a particular process before issuing warnings or dismissing an employee, those that implement a procedurally fair process will be in a better position to defend those claims, Ramsey says.

"If you don't follow these processes, you're in the same position as if the employee had more than six months' service with you. The only difference is they can't bring an unfair dismissal claim, but there's certainly other claims that they may be able to bring."

The full webcast, accessible with HR Daily Premium membership, outlines what procedural fairness looks like in disciplinary, performance management, and termination meetings; the support person role; conducting investigations; and termination decisions – upgrade here if you're not a premium member.