Eight boxes to tick before you terminate anyone

1. Is the reason valid, specific, and backed by evidence?

Write the real reason down, not the version that sounds cleanest. Then ask whether you can actually support it with evidence.

The trap is working backwards from an outcome you’ve already decided on. If a manager has already decided someone should go and starts looking for performance issues to justify it, that’s hard to hide once it’s challenged.

If you can’t write the reason down in one sentence and list the evidence behind it, you’re not ready to start.

2. Have the concerns been put to the employee in writing?

“We have concerns about your conduct” is not an allegation. Neither is “bad attitude” or “unprofessional.” The employee needs the specifics: what happened, when, and who was involved.

It doesn’t need to be a formal letter. An email is fine, provided it includes the concern, the relevant dates, and reasonable notice, at least 24 hours, so the employee can actually prepare.

If you can’t write the allegation out in plain language, that’s the signal you need to investigate further first.

3. Has the employee had a genuine opportunity to respond?

Procedural fairness comes down to three habits: tell them, let them answer, keep an open mind.

Give them real time to understand and prepare a response, not five minutes in a hallway. And if new information comes up that changes the picture, pause, check it, and come back to the process rather than pushing through.

Take a common scenario: a supervisor is caught on camera stealing stock. Same employee, same conduct, same eventual outcome, but one manager sacked him on the spot with no chance to respond, and the other stood him down on pay, put the allegation in writing, and held a meeting with a support person before deciding. Identical facts, completely different risk profile.

Don’t write the termination letter before the meeting happens. If it’s already drafted, you can’t credibly say the response was considered.

4. Was a support person offered?

This one costs nothing and removes an easy avenue for challenge. Tell the employee, in the same communication that raises the concern, that they’re welcome to bring a support person.

5. For performance issues, were prior warnings given and documented?

Performance dismissals rarely go wrong because the performance was fine. They go wrong because the business can’t show what it did to address it.

The process has four stages: an informal conversation followed by a short confirming email, a formal performance plan with measurable expectations and real check-ins, a warning that spells out what happens if nothing changes, and a final review or show cause meeting where the position is put to the employee directly.

If the employee has never actually been told there’s a problem before the warning stage, stop. A final warning that comes out of nowhere looks unfair because it usually is.

6. Is dismissal actually proportionate?

The same conduct can justify different outcomes depending on the employee’s history. A long-serving employee with a clean record sits in a different position to someone repeatedly warned for the same thing.

Before finalising the decision, ask directly: is dismissal proportionate here, or would a lesser response deal with the same issue?

7. Is notice correct, and is final pay accurate?

Two separate traps live here.

On notice, check the National Employment Standards minimum and the applicable award, agreement or contract, whichever gives the greater entitlement. Notice is the safer default. Summary dismissal without notice should be reserved for genuinely serious misconduct, and even then the saving is often only a few weeks’ pay set against a much larger risk if the conduct is later found not to justify it.

On final pay, don’t call a payment “redundancy” if it isn’t one. Redundancy pay doesn’t apply to performance or misconduct terminations. If the business wants to make an additional payment as part of an agreed exit, that’s an ex gratia payment alongside a deed of release, not redundancy.

Confirm wages to the final day, accrued leave, and notice treatment before the termination meeting, not after.

8. Is the file complete?

Good documentation is dated, factual, and specific. Put these two file notes side by side and the difference is obvious: “Employee arrived at 9.35am for the third time in two weeks” is useful. “Employee is always late” is a conclusion, and much harder to defend.

Record the employee’s response too, even if it’s “no comment.” Document it. Do it at the time. Keep it factual and keep the record.

Write everything as though someone else might eventually read it, because in a dispute, they will.

What happens in the room matters just as much

The eight boxes get you to the termination meeting. What you do inside it decides how it’s remembered.

Keep it short. Once the decision is confirmed, explain the reason clearly and briefly, there’s no need to build up to it, and being direct is often kinder. Don’t introduce new reasons or start negotiating once you’re in the room. Let the employee react. They may be upset or angry, and that’s fine, give them space and don’t feel you need to fill every silence.

Avoid the phrases that come back to bite you later: “we’ve already decided,” “HR made us do this,” or calling it a restructure when it isn’t. And write the file note straight after the meeting, while it’s fresh.

Why the stakes just got higher

None of this is new law. What’s changed is who’s testing it. Fair Work Commission president Justice Adam Hatcher has pointed to AI tools as a factor in the rise in claims, after testing ChatGPT himself and receiving what looked like a complete, professionally structured unfair dismissal application in under 10 minutes, built on a substantially fabricated account of events.

That cuts both ways. It’s easier than ever for an employee to produce something that looks credible. But a fabricated narrative is far easier to challenge when the business has its own contemporaneous, factual record to compare it against.

Don’t wait until there’s a dispute to start documenting.

The eight-box checklist isn’t a compliance formality. It’s the difference between a business that can produce its evidence on the day the Commission asks for it, and one of the 62 per cent that couldn’t.

If you want to go deeper on any of this, watch the on-demand recording of our Termination without tears webinar, or get in touch with Citation HR for a walkthrough of your own termination process before you need it.