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18 December 2020

Can I sack my ex-partner?

My ex-partner is screaming at my staff, throwing tantrums in the tea room and has a client-losing attitude. Can I sack them?

My ex-partner is screaming at my staff, throwing tantrums in the tea room and has a client-losing attitude. Can I sack them?

Yes, provided the termination process is lawful and it is the same as it would be for any other employee.

How do I know if my ex is an employee?

If your ex performs work for your business, they may be an employee at law. It is commonplace for a spouse to be employed in the business one to two days per week to provide general support to the business as needed. However, it is not always straightforward as to whether they are:

  • an employee and entitled to employment benefits, or
  • simply performing unpaid work for the business as a director, as members of a family commonly do.

Can I sack them on the spot?

If your ex is an employee, on rare occasions, and if their behaviour warrants it, you may be able to ask them to leave on the spot. However, in most cases, you will need to provide notice or payment in lieu. If they are a casual employee according to law, you can just stop offering them work.

If your ex has an employment agreement or is covered by a modern award, you should look at these documents for any notice periods. If there is no written document that governs the working relationship, there may be a verbal agreement that makes up the employment agreement. In determining if an employment agreement exists, it must be clear that:

  • the parties intended to create a legally binding arrangement
  • there is a commitment to perform work for the benefit of the business
  • the person performing the work is to get something in return
  • the person is not performing the work as part of a business of their own.

A court will also consider the nature of the arrangement, not just what the parties have decided to call it. In doing so, the court will consider:

  • the nature and purpose of the arrangement
  • the length of the arrangement
  • the significance of the arrangement to the business
  • the person’s obligations
  • who benefits from the arrangement.

Where your ex is performing productive work for the ordinary operation of the business and is being remunerated for their work, it is likely that an employment relationship exists. If this is the case, you will need to further determine what protections your ex is entitled to under the Fair Work Act or any applicable agreement or modern award.

Can my ex bring an unfair dismissal claim?

Some employees are eligible to bring an unfair dismissal claim. If there is a risk of an unfair dismissal claim, you need to consider whether the dismissal:

  • was made for a valid reason
  • was not made for an unlawful reason
  • was not harsh, unjust or unreasonable.

Whether there is a valid reason for dismissal will depend on the individual facts of each case. Simply because a person is your ex and you don’t like them will not be a valid reason to dismiss them. If, however:

  • they are behaving inappropriately
  • they are causing issues for staff or clients
  • they are not meeting an acceptable level of work
  • there is a loss of trust and confidence
  • the business does not require their role to be performed by anyone,

you may have a valid reason to dismiss them.

Once you have established that there may be a valid reason for dismissal, your ex must be:

  • provided with notice of the reason for the possible dismissal
  • given an opportunity to respond
  • informed of the reason for dismissal (in person where possible) and offered the opportunity to have a support person.

Keep in mind, you may be up for paying spousal maintenance

If you terminate your ex-spouse’s employment resulting in them having no income, you may be ordered to pay spousal maintenance.

Spousal maintenance is an amount of money paid by one spouse to the other for their financial support.

In an application for maintenance, the Federal Circuit and Family Court will consider whether:

  • your spouse can adequately support themselves
  • you have the capacity to support them.

In determining whether your spouse can support themselves, the court will consider whether:

  • they have the care and control of a child of the marriage
  • they are unable to obtain appropriate gainful employment due to age or physical or mental incapacity
  • they have any other demonstrated need having regard to the matters in section 75(2) (for married parties) or section 90SF (for de facto parties) of the Family Law Act 1975.

If you sack your ex-partner, you may be up for paying them maintenance from your after-tax dollars, which is likely to be less tax effective than if they were to be paid a wage from your business.

If you think it preferable that your ex-partner no longer works in the business, address this with your family lawyer first, rather than put anything in writing directly to them that might constitute a termination. It may be that, through without prejudice negotiations, an agreement can be reached for your ex-partner’s early exist from the business with little fuss.

If that cannot occur, then an employment lawyer will be able to guide you through a lawful termination process. However, it is important to bear in mind the family law consequences of your ex being out of work and having no income.

If you need advice about these issues, you are most welcome to contact one of our experienced family or employment lawyers who will be able to assist.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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