can I prevent unfair dismissals and subsequent claims?
With Australia having the second
highest incidence of litigation worldwide, it has become increasingly
important for employers to understand current employment legislation.
It is important for employers to be aware of current legislation,
as employees are now more likely to seek legal advice when
they believe they have been discriminated against and quite often the
law leans in the direction of the employee. Included below are
some practical steps on how you can minimise the risk of a claim.
a valid reason for the termination
Capacity and Conduct
Essentially capacity and conduct are the
employee’s ability and willingness to do the job. The employee must
have the necessary skills, knowledge and qualifications and be prepared
to behave in an appropriate manner—to follow instructions, not
intentionally harm the employer’s business and use skill and care
while working. The lack of ability to do the job, or failure to observe
proper conduct, are valid reasons for dismissal if
procedural fairness is observed. The
capacity or conduct of the employee is also a prime consideration
in unfair dismissal provisions under State legislation.
due to redundancy
Dismissal of an employee because of the
operational requirements of the business usually occurs because there is
no longer any work for the employee. This situation, known as
redundancy, usually arises because of circumstances such as the
introduction of technological change, economic downturns, company
mergers, take-overs or restructuring.
An employer can minimise the risk of an
unfair dismissal claim when making employees redundant by following the
redundancy procedures in the award that applies to their business.
Typically these procedures include:
- consulting employees
about the changes that are bringing about the redundancy;
- trying to find an
alternative position for the employee in the business;
- settling on a fair
decision-making process for selecting employees to be made
It will not usually result in an unfair
dismissal claim if the employee accepts that the reason for the
dismissal was beyond the control of the employer. It would not generally
be appropriate however, to dismiss an employee on the ground that work
was no longer available if a similarly qualified person is then employed
to do the same work.
Procedural fairness is an important
issue, and the Australian Industrial Relations Commission (AIRC) will
have regard to whether or not an employee has been afforded procedural
fairness when it is deciding an unfair dismissal claim.
In handling unfair dismissal cases the
AIRC will consider not only whether the employer had a valid reason for
dismissing the employee but also whether the employee was informed of
it. No matter what the
reason for the dismissal—even redundancy—the Commission will still
consider whether the employee was informed. It is
good business practice to give the employee in writing the reason(s) for
termination and keep a copy for your records.
Opportunity to respond
Giving the employee the opportunity to
respond to the reasons given for dismissal provides fairness to
employees who face losing their jobs. It is particularly important if
the reason is the employee’s conduct or work performance. It
is also good business practice to keep a written record of the fact that
the employee was given a chance to respond, and record the nature of any
There is no set number of
warnings that must be given to an employee about unsatisfactory
performance or conduct. To help prevent an unfair dismissal claim based
on procedural fairness, there should be at least one warning of
dismissal. This warning should:
- clearly identify the problem;
- indicate what changes or
improvements are expected;
- state that dismissal might
occur if the problem continues;
- set time in the near future
to review the employee’s performance or conduct; and
- when a time for improvement
is specified, it should be made clear that dismissal could still
occur in the review period if the employee’s performance is
More than one warning may be appropriate,
depending on factors such as the employee’s length of service and the
nature of the conduct or performance.
A copy of a written warning is the
best way to demonstrate that this procedure has been followed. Ideally
this should be signed by the employee as an acknowledgment of receipt.
If it is not possible to give a warning in writing, the employer
should make a short note of the nature of the conversation and have the
employee sign it as agreeing to what was said.
The employer might offer the employee the opportunity to have a
representative, such as a union or workplace representative, in
attendance at any counselling session. This might be important if the
employee has any language or literacy difficulties.
If you require any assistance filling your vacant
positions, please feel free to contact our office on 9570 2411
If you have any questions, human
resources issues to discuss or would like to give any feedback in
regards to this newsletter, please don't hesitate to email me - firstname.lastname@example.org