It is a legal requirement that employee dismissals are fair, just and reasonable, and not for discriminatory reasons, or as a response to an employee exercising a workplace right.
However, not all employees can bring a claim for unfair dismissal, as it is dependent on whether or not the legislation gives the Fair Work Commission the jurisdiction to determine the matter. If you believe you may have a claim you should talk to us about your options as soon as possible.
Unfair Dismissal – what is it?
Most workers in Australia would have heard of Unfair Dismissal at some point or another. This is when an employee has been dismissed and it appears to be a harsh, unjust or unreasonable action. When someone has been unfairly dismissed they can seek to be reinstated or compensated by their employer.
To process an Unfair Dismissal case an employee has to apply to the Fair Work Commission within 21 days of their dismissal. The Commission will then deem it as unfair before the matter goes to a hearing.
At the hearing the dismissed employee will need to present evidence to satisfy a Member of the Commission that they were dismissed, it was harsh, unjust or unreasonable, and was not a genuine redundancy. This can lead to the employer making compensation payments, being required to cover some or all of the dismissed employee’s legal costs and even face penalties from the Fair Work Commission.
Common Scenarios & Traps
One commonly mistaken scenario is employees who turn up late to work. According to the Fair Work Commission, an employee turning up late is not grounds for instant dismissal on the day it happens. It needs to be an aggregation of behaviour. Employees can be fired for turning up late, but the employee needs to have a workplace policy that clearly outlines that showing up late is a serious offence. They need to be given warnings for turning up late and after a series of these warnings the employer may have grounds to terminate their employment.
When an employee is fired for disciplinary reasons there needs to be documentation of previous discipline. There have been cases where an employee has been dismissed for repeated breaches of the workplace code, however without any evidence of these breaches and warnings the employee’s dismissal is likely to be seen as unreasonable as there was no basis for the termination.
How to avoid Unfair Dismissal cases
There are a number of steps businesses can take to avoid facing unfair dismissal claims, or at least avoid losing to an unfair dismissal claim.
Firstly, have an employment lawyer work with you to put together company policies & procedures, and workplace agreements that cover employment and termination provisions, including behaviour that constitutes a serious breach of the employment contract and the consequences. This should also include a probationary period in which there is no penalty for terminating the contract.
Documentation is an important part of any business and it can make a big difference in cases where there has been consistent poor performance or behaviour by an employee. By documenting all warnings and breaches of the workplace code the employee is given a chance to improve as they realise poor performance will not be tolerated. Documentation also acts as a deterrence as the employee knows the employer has evidence to prove a dismissal could be justified and reasonable.
If you decide that termination of employment is the only way to deal with an employee, avoid instant dismissals and consult with your lawyer first. It’s much better to know in advance if you have grounds to dismiss rather than be forced to pay compensation or even reinstate a poorly performing employee later.
Read an article about adverse action in the form of an unfair dismissal.
If you have any queries regarding Unfair Dismissal contact Adams Wilson Lawyers for practical advice.