Avoiding unfair dismissal claims is a matter of following correct process and ensuring your decisions can be justified. If you think an employee needs to be let go for misconduct or under performance.
UNFAIR DISMISSAL DEFINITION
Unfair dismissal is when an employee is dismissed from an organisation in a harsh, unjust or unreasonable manner. The Fair Work Commission uses the following points to decide if a dismissal was harsh, unjust or unreasonable:
- Was there a valid reason for the dismissal related to the employee’s behaviour or conduct?
- Was the employee notified of the reason prior to termination and given an opportunity to respond or improve?
- Did the employer unreasonably deny the employee a support person when discussing the reason for termination?
- Was the employee previously warned about the reason for dismissal?.
HOW TO AVOID UNFAIR DISMISSAL CLAIMS
- Give the individual a chance to improve: Instant (Summary) dismissal is only justified in cases or serious misconduct such as sexual or physical assault, being intoxicated while operating machinery, theft or fraud. In the majority of cases, people are dismissed for less serious misconduct or failing to do their job properly. In these cases, the employee should be informed that their behaviour or performance is not satisfactory and a reasonable time frame provided for them to show improvement. Be sure to warn the employee of what disciplinary action may take place if improvement is not seen. Be sure to keep a record of this discussion.
- Do not abuse the dismissal process: It is not reasonable to dismiss an employee due to their personality or people not liking them. Dismissal should always be related to performance or conduct. If an employee is dismissed for not being liked or not having an ideal personality, the organisation will be on track for an Unfair Dismissal Claim.
- Allow the individual to respond to any allegations: If any allegations are made against an employee, the employee should be made aware of all of them is full and in a way that they can understand. All allegations should be “spelled out” and all particulars should be mentioned. Once the employee is made aware of all of the allegations, they must be given a reasonable time to respond to these allegations. You must not make a decision to dismiss an employee before they have had a reasonable chance to respond. Eg. Don’t draft up the termination notice prior to receiving the employee’s response or this could be seen as failing to follow fair process.
- Allow the individual to have a support person present during discussions: The employee should be advised of their right to a support person during all performance discussions and any disciplinary or termination/show cause meetings. If an employer denies the individual a support person, an Unfair Dismissal claim could be upheld, as the Fair Work Commission takes this into strong consideration.
- Conduct a Show Cause Process: If the employee has been given an opportunity to change/improve/respond to allegations and you still think there are grounds for dismissal, you should inform the employee in person that you intend to terminate their employment. They should then be given reasonable time to show cause as to why their employment should not be terminated. If you are not satisfied with their show cause response, you can go ahead and issue the notice of termination.
- Be nice about it: An individual is more likely to make a claim for Unfair Dismissal if they feel they were treated disrespectfully or humiliated during the process. Even if you feel as though the individual does not deserve positive treatment, it is important to remain civil, polite and non-vindictive. Mention the positives of their employment such as any good work or positive contributions they may have made to the workplace. Give them notice of termination to assist them in finding a new job and wish them well.