How should you, as an employer, make sure you avoid unfair dismissal claims? You may be liable under the Fair Work Act if an employee’s dismissal is held to be “harsh, unjust or unreasonable” by the Fair Work Commission.  This will involve being involved in a stressful and potentially reputation-harming trial.  In other words, an unfair dismissal claim can and should be avoided.

Don’t sack them on the spot

There are very few situations where you can legally sack a person on the spot.

Part of your role as an employer is to explain to an underperforming or misbehaving employee what they are doing/have done 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.

unfair dismissal
Don’t sack them on the spot!

Be collaborative rather than authoritarian

Don’t scream and yell – certainly don’t try to talk the employee into leaving, this can result in what is called constructive dismissal or a workplace bullying claim.

You should organise a meeting with the underperforming employee to discuss the problem, and then devise a potential solution with them.  Following this, clear performance goals should then implemented with dates set for reconvening to discuss whether they have met these goals.

Think about it – how better will this look in court if you do this, or will it actually solve the problem without you having to terminate their contract?

Allow the person to respond to any allegations

Any allegations about misconduct or under-performance should be made out clearly and in full to the employee.  This is not just a matter of fairness – you have a legal obligation to do this.

You need to clearly spell-out the particular allegations of misconduct directly to the accused, as many employers are later found liable in court for not making the allegations clear enough to the employee.  Communication is the key.

The employee then needs to be given a chance to respond and you also need to genuinely consider their response.

So to summarise you need to:

(1) make the allegations out to the employee in writing,

(2) give them a chance to consider to those issues and

(3) then make a date to have further discussions about it.

If you don’t do this you will almost certainly be held liable for unfair dismissal.

Allow the person to have a support person present for any discussions related to their performance or the matter

You need to tell the person they have a right to bring in a third party (be it a lawyer, union representative or friend) to discuss their performance issues or any other issues related to their performance or the matter.

Again, this is not just a matter of fairness, it is a matter of law – at least as far as unfair dismissal claims are concerned.

Don’t sack someone just because you don’t like them

Reading between the lines in many Fair Work Commission decisions it’s pretty obvious that many employers dismiss someone because they don’t like the person, rather than for performance or misconduct reasons.  This is a sure-fire way to land your business in trouble and clearly not a valid reason for dismissing someone. The right to dismiss for businesses is designed to remove under-performing or badly behaving workers, not to get rid of people who are not liked.

Also, don’t think you can simply dress up a dismissal as being for legitimate reasons when it’s not – because courts have a way of seeing through non-genuine actions.

By the same token, please be aware of the way other workers can abuse the complaints system against employees because they don’t like the employee or because they think they are a threat.  Be cautious and properly investigate any complaints.

Be nice about it

Often dismissal cases end up in court because the sacked worker feels angry, humiliated or under-appreciated as a result of it.

It may not be realistic to sugar-coat something as unpleasant as a dismissal, but the way you conduct the dismissal may have an impact on whether a person takes legal action.   So be nice, 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.

Note also, you are required to give an employee notice of their dismissal and the amount of notice required is based on the length of service of the employee.

Make sure a dismissal is actually warranted

There are very few things which justify instant dismissal, as termination is really a last resort.  It is only legal for a small business employer to dismiss an employee without any notice or warning if they have been involved in theft, fraud, violence or serious breaches of WHS.  You need to investigate a number of other problem-solving avenues to address the problem before you can pull the termination trigger.

Lachlan McKnight

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