How to minimise the risk of claims for unfair dismissal.

Key points:

• Section 382 of the Fair Work Act, protects employees from unfair dismissal.
   
• Ensure that there is evidence for lawful dismissal.
   
• Easiest way to prove fairness of dismissal is by performance management prior to termination.
   
• Making someone redundant does not necessarily avoid unfair dismissal claims
   

Section 382 of the Fair Work Act, protects employees from unfair dismissal.

Unfair dismissal is defined as termination of a person’s employment which is harsh, unjust or unreasonable. In determining whether a dismissal is unfair, the Fair Work Commission will consider all the relevant circumstances which brought about the dismissal.

Employers cannot stop an employee from making a claim for unfair dismissal if the employee satisfies the Fair Work Act’s requirements for making an unfair dismissal claim. However employers can improve their chances of successfully defend a claim by ensuring they have rigorous written processes in place which will assist if a claim is made to prove to the Commission that the dismissal was for a proper purpose, fair and in all the circumstances reasonable.

Before a decision is made to terminate a person’s employment, employers should ensure that they have given proper consideration to all the facts and circumstances which have led to the person’s employment being at risk; and give the employee the opportunity to respond to the concerns of the employer, and if appropriate give the employee the opportunity to improve their work performance or conduct which gave rise to the employer’s concerns with the employee.

The process should be fair and reasonable.  It should also be documented with all details being recorded.  Any formal disciplinary meetings held with the employee should be conducted having regard to procedural fairness and the employee should be told about what the meeting is about and they should be told that they can have a support person present at the meeting.  It is important to note that the role of the support person is not as an advocate for the employee. They are simply there to support the employee during the meeting.

Where the employer is a small business care should be taken to ensure that the employer complies with the Small Business Fair Dismissal Code.

Contact us for expert advice on how to prepare your business to defend a claim for unfair dismissal and what to do to improve your chances of successfully defending a claim.