Can notice of termination be withdrawn?

If a party gives notice of termination of employment to the other party in terms that are clear and unambiguous, that notice cannot be withdrawn unless the other party consents to such a withdrawal. However, if a party gives notice that is unlawful (i.e. done insufficient notice, or the conditions stipulated in the contract for giving notice are not satisfied), the party receiving the notice can elect to treat the notice as ineffective and the employment continuing. In a practical sense, however, this may be difficult.

My employee breached a company policy. Can we terminate on this ground?

Breach of a reasonable and defensible policy can provide a valid reason for dismissal for the purposes of unfair dismissal laws. However, you still need to give the employee an opportunity to respond to the assertion that this breach provides grounds for dismissal. The breach may not justify the sanction of dismissal, particularly where the breach has not caused significant harm to the employer, and the employee is long serving.

An employee on a performance improvement plan (PIP) has not improved. What can I do?

If you have given the employee reasonable support to improve, and the standards set in the performance improvement plan are defensible, you should ask the employee to attend a meeting about their employment. Invite the employee to bring a support person. Explain that you believe you have grounds to dismiss them because of unsatisfactory improvement. You must give the employee an opportunity to respond, consider their response and determine whether to dismiss or give the employee further time and support to improve his or her performance.

Do I have to give an employee a hearing before I dismiss an employee on performance or misconduct grounds?

There is no implied right of an employee under an employment contract to a hearing. It is arguable, however, that if an employer fails to observe its own disciplinary procedures and policies, which require procedural fairness to be given to employees, it will breach the implied term of trust and confidence.

An employer must not exercise discretion available to it under the employment contract in a manner that is capricious or in bad faith.  For example, if an employer deliberately sets performance standards at an unattainable level for an employee because the employer seeks grounds for termination, the exercise of its discretion might arguably breach the employer’s implied contractual duty of good faith.

This article is an edited version. The full article was first published in the September 2015 issue of HRMonthly magazine as ‘AHRI:ASSIST Q&A’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.