Employers should be aware there is a rising trend in the number of general protections claims recently, particularly claims made by terminated employees who are not entitled to claim for unfair dismissal. This trend is predominately led by employees who have been dismissed during their probation or before the minimum employment period, which is six months of employment for businesses with 15 or more staff or 12 months of employment for businesses with 14 or less staff.
ProcessWorx HR Advisors often hear misconceptions from clients that by terminating an employee during the probationary period the employer does not need to give a reason for the dismissal. While this is technically true it exposes the business to a large risk that the terminated employee creates their own reason and makes a claim that they were terminated for exercising a workplace right. Terminating an employee for illegal reasons or protected workplace rights can increase an employer’s risk of general protections claims.
What are general protections claims?
General protections are workplace rights and freedoms that are protected by the Fair Work Act (2009). General protections claims can be brought by employees regardless of their length of service, both during employment and up to 21 days after the termination of employment. Unlike unfair dismissal claims, the damages for general protections are uncapped, making the financial risk to employers greater. The grounds to which general protections claims can be bought include if an employer has taken adverse action against an employee because of a protected reason (e.g., race, gender, sexuality, pregnancy, age) or if they have exercised a workplace right (e.g., made a complaint, grievance, raised a safety concern or taken leave). Adverse action against an employee can be any negative act, while it is usually termination, it can also include, but is not limited to, demotion, reduction of hours, actively unfairly allocating perceived undesirable tasks or de-skilling.
What should employers do instead?
Always give a reason for terminating an employee, even during probation. The recent success in general protections claims for those ineligible to make unfair dismissal claims has been because employers did not give a reason for termination, leaving the opportunity for ex-employees to create their own. While legally giving a reason is not necessary when employees are on probation, ProcessWorx recommends following the formal discipline and termination procedures to mitigate risk.
The best way to do this is to inform employees who are terminated what the actual reasons or issues were. This cannot be for reasons such as taking too much personal leave, raising workplace complaints, work health and safety concerns or being pregnant. The issues must be valid and surround the employee’s conduct or performance at work.
Discussing these issues before termination with the employee, even informally is another good way to manage potential dismissal as there will be a record of warning.
For more advice on dismissing an employee during the probationary period read here
If your business needs assistance with lawful termination, adverse action or general protections claims please contact our HR Advisors on (08) 9316 9896.