Table of Contents
When dismissing an employee, you should avoid dismissing them harshly, unjustly or unreasonably. Otherwise, you could be liable for compensation if your employee initiates a successful claim. Therefore, to avoid this financial burden and reputational damage, it would be wise to consider the following points to avoid an unfair dismissal claim. This article will list some strategies to avoid unfair dismissal claims.
Do Not Dismiss Your Employee on the Spot
There are very few situations where you can legally summarily dismiss a person (i.e. dismiss them without notice). Namely, you can only dismiss your employee without notice if they commit serious misconduct. In most instances, you should give fair warning to your employee about their potential dismissal.
Part of your role as an employer is to explain to an underperforming or misbehaving employee what they are doing or have done is wrong. You then need to give them a chance to improve unless there is clear evidence of them acting illegally at work or seriously breaching work safety. Part of this process is about clear and genuine performance targets. However, there is no legal obligation to give an employee a certain number of warnings before sacking them.
Be Collaborative Rather Than Authoritarian
Contrary to what movies portray, you should not scream and yell at your employees. Additionally, you should not attempt to talk your employee into leaving the company, given this can result in a constructive dismissal or a workplace bullying claim. Ultimately, you should organise a meeting with the underperforming employee to discuss the problem and then devise a potential solution with them. Following this, you should implement clear performance goals with dates for reconvening to discuss whether they have met these goals.
Continue reading this article below the formAllow the Person to Respond to Any Allegations
Any allegations about misconduct or underperformance should be made to the employee clearly and in full. When it comes to clarifying the reasons for the dismissal, you should have a valid reason solely based on their capacity and performance in the workplace. Ultimately, this is not just a matter of fairness – you have a legal obligation to do this.
You must also clearly spell out the misconduct allegations directly to the accused employee. You should then allow your employee to respond to the allegation. This might mean that your employee:
- disagrees with your allegation on a certain basis;
- has a reasonable excuse for their underperformance; or
- commits to rectifying the issue.
Ultimately, allowing your employee to rectify the issue can help you avoid dismissal altogether. However, they may need help to rectify the issue. Accordingly, consider providing your employee with additional training and support depending on their circumstances.
Allow a Support Person
Although the law does not require you to offer your employee a support person during disciplinary meetings, it is a good idea that you give them the option. After all, disciplinary meetings can be a confronting experience for your employee.
Allowing your employee to have a support person present can help ensure that dismissal procedures are fair and considerate of your employee’s needs. However, you should note that the role of a support person is not to advocate on behalf of your employee. Thus, the support person should not speak on behalf of your employee. Rather, a support person is present to aid your employee’s emotional well-being.
Have a Valid Reason For the Dismissal
If you read between the lines of many Fair Work Commission decisions, it is clear that many employers dismiss someone because they dislike the person rather than for performance or misconduct reasons.
This is guaranteed to cause problems for your business, as disliking someone is not a valid reason for dismissing them. The right to dismiss is to remove underperforming or badly behaving workers, not to remove people you do not like.
Furthermore, you should not dress up a dismissal as being for legitimate reasons when it is not. This is because a court is likely to see through non-genuine actions. By the same token, you should be aware of workers who may abuse the complaints system against employees because they do not like the employee. In any event, you should properly investigate complaints to determine whether to escalate the matter.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Be Nice About It
Often dismissal cases end up in court because the dismissed worker feels angry, humiliated or under-appreciated. It may be unrealistic to sugar-coat something as unpleasant as a dismissal. However, how you conduct the dismissal may impact whether a person takes legal action. So, be kind, sensitive, non-vindictive and above all else, fair.
This may involve wishing the person luck or, if appropriate, offering to assist them in whatever way you can. Additionally, you should give your employee:
- the appropriate notice of dismissal under the relevant award, enterprise agreement or employment contract; and
- final pay, including any outstanding payments and unused benefits such as accrued annual leave and long service leave.
Ensure The Dismissal is Warranted
There are very few actions that justify instant dismissal, as termination is a last resort. It is only legal for a small business employer to dismiss an employee without any notice or warning if they are involved in theft, fraud, violence or severe breaches of work health and safety law. You need to investigate several other problem-solving avenues to address the problem before you can pull the termination trigger.
In saying that, it is wise to seek legal advice before you dismiss an employee. An experienced employment lawyer can provide you with tailored advice specific to your matter.
Key Takeaways
Unfair dismissal is where you end employment in a harsh, unjust or unreasonable way. To avoid a claim for unfair dismissal you should:
- give your employee notice of their dismissal;
- be collaborative rather than authoritative;
- give your employee a reasonable opportunity to respond to your allegations;
- allow your employee to have a support person in disciplinary meetings; and
- have a valid reason for the dismissal.
If you are having trouble with an unfair dismissal claim, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Constructive dismissal is the non-voluntary resignation of an employee in response to something their employer has done.
Serious misconduct includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment and conduct that causes a serious and imminent risk to the health or safety of a person; or the reputation, viability or profitability of the employer’s business. Examples of serious misconduct may include theft, fraud, violence or serious breaches of work health and safety laws. You can dismiss an employee on the spot if they commit serious misconduct.
We appreciate your feedback – your submission has been successfully received.
