Does that termination pass the 3 tents test?

Having worked in the field of HR fort over 40 years, there have been hundreds of occasions when I have had to terminate employees or support employers through the process of terminating employees for misconduct.

In doing so, we need to consider fairness from a couple of angles:

• Substantive fairness which requires that the action taken would not be harsh, unjust or unreasonable and
• Procedural fairness which is about ensuring that due process has been followed and the principles of natural justice have been complied with

A process that I use to consider the substantive fairness of an action is to assess them against the “3 tents” namely:

• Content: what actually happened, ensuring that you are aware of the facts of events that have given rise to consideration of action?
• Intent: was the action or dereliction of duty or other offence deliberate or was it due to a misunderstanding or a heat of the moment thing and is it in or out of character for the individual concerned?
• Extent: what was the effect of the action or dereliction of duty or other offence on the business and/or employees and/or other parties?

Of course there are the procedural elements to attend to as well but ensuring that the action that you propose will stand up to the “3 tents test” is a good start. One other piece of advice – if you have a situation where you think you might have to terminate an employee for misconduct, get professional advice before you go further. You might also need to stand them down with pay while you do that and work through the process. If you need a hand, give us a call on 0438 533 311.