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4 Tips on Avoiding Unfair Dismissal Claims

What is unfair dismissal?

According to The Fair Work Ombudsman - 

An employee has been unfairly dismissed if the Fair Work Commission is satisfied that all of the following has occurred: 

- The person has been dismissed. 

- The dismissal was harsh, unjust or unreasonable. 

- If the employer is a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code (Click here for more information) 

- The dismissal was not a case of genuine redundancy.” 

What is deemed as a fair dismissal?

According to The Fair Work Commission –

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that all allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report”.

So today, we are going to break down 4 of our tips on how to avoid unfair dismissal claims...

01: Count to 10

There are very few situations where an employee can be dismissed on the spot. Yes, sometimes it is very difficult to disengage emotion (especially if you are the business owner) but we all learn the hard way that emotions can sometimes be quite detrimental to business. 

As an employer, you need to explain and communicate to the employee what they have done wrong and also provide constructive criticism. Part of communicating with your employee is setting clear, achievable and genuine performance targets.

Meet with your underperforming employee to discuss the problem at hand and then devise a potential solution together. Following this, clear performance goals should be set and implemented with dates agreed for reconvening to discuss whether the proposed solution and targets have been working and met.

02: Listen

Any allegation of misconduct or underperformance needs to be made out clearly and in full to the employee – This isn’t just a suggestion; you have a legal obligation to do so. 

You need to be specific about the particular allegations of misconduct directly to the accused employee as research shows that many employees have been found when an unfair dismissal claim is lodged to have not made the allegations clear enough to the employee. 

Remember: Communication works both ways. 

After you have stated your case, you are required to give the employee a chance to respond. As the employer, you also need to genuinely consider their response and take a step back. Pull out the emotion and see both sides. 

Articulate all allegations in writing and also break them down face to face so you have the opportunity to hear responses. 

03: Do Not Use Power

Do not think ‘If I can’t fire them, I can find a way to make them quit’. There is a term for this; it’s called ‘Constructive Dismissal’ whereby an employee’s job or working conditions change with the aim of forcing their resignation. This will not work. Let’s add a workplace bullying claim to your list of headaches, shall we? 

Often employers make impulsive decisions that lead to an unfair dismissal claim because they feel angry, betrayed or humiliated. Yes, having an employee under-perform or abuse your business and trust is definitely hurtful and sometimes it may not be realistic to sugar-coat a situation as unpleasant as dismissal, but the way you conduct yourself may have a huge impact on you and your business. Do not be vindictive, state the facts and ensure that you are black and white, avoid starting sentences with ‘I feel’.

04: Allow Support

If you are ever having a serious conversation with an employee about their performance, you are legally required to allow your employee the opportunity to have a support person present. This is an element of ‘procedural fairness’. 

Under the Fair Work Act, the Fair Work Commission would consider whether or not an employer allowed the underperforming employee to bring a third party to discuss their performance issues or any other issues relating to the dismissal when deciding whether or not to penalise the employer. An example of a third party support could be a lawyer, union representative or a friend. 

In a nutshell, to avoid unfair dismissal claims – ensure that you have evidence, that you are professional and that you do your research. 

If in doubt – give WhiteCollarBlue a call... As HR Solutions Specialists, we can assist you and also guide you in the right direction when it comes to the uncomfortable topics within business, to name a few; 

- Unfair Dismissal Allegations. 

- Legal Representation at Fair Work Commission Hearings. 

- Legal Compliance. 

- Discrimination, Harassment & Bullying. 

If you are a business that is struggling with Unfair Dismissal cases, why not book in your free 90-minute Business Healthcheck with WhiteCollarBlue. With our Free Business Healthchecks, you will gain the full attention of a qualified HR practitioner to come in, assess a particular area or multiple areas of your business and then work with you to turn these struggles around. Not only could booking in your Healthcheck save you thousands of dollars in fines, but it could also save your sanity. 

Why not give WhiteCollarBlue a call today and discuss the Healthcheck options we have; 

1. Governance, Compliance & Financial Accounts Management 

2. Management (Leadership & Teamwork) & Performance Management 

3. Work, Health, and Safety. 

4. Employment Practices. 

For this particular topic, you would want to book in your Free Governance, Compliance & Financial Accounts Management Healthcheck with one of our qualified HR practitioners. 

WhiteCollarBlue: 1300 559 662 


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