Are you terminating employees fairly?
It can be a confronting accusation when an unfair dismissal claim is made against your organisation. It can leave you questioning whether you have terminated the employee correctly, even when you have followed the law to the letter. In order to ensure your organisation is safe from the ramifications of an unfair dismissal claim, procedural fairness should be followed.
So what is unfair dismissal? When an employee is dismissed from their job unreasonably, unjustly or harshly, when it is not a case of genuine redundancy, or when the small business did not follow the Small Business Fair Dismissal Code, it may be considered an unfair dismissal. A genuine redundancy is when you no longer require a job to be performed and have not hired a replacement employee, and when consultation requirements outlined in the employee’s award or agreement have been followed. If these conditions are not met it may be considered an unfair dismissal.
It is important to be aware of what is considered unreasonable, unjust or harsh, as it may determine whether the unfair dismissal claim can be substantiated. When determining whether a dismissal was unreasonable, unjust or harsh, ask yourself these questions:
- Did you give a valid reason, related to the employee’s conduct or capacity, for the dismissal?
- Did you inform the employee of the reason behind the dismissal, and give them an opportunity to respond?
- Did you unreasonably refuse to allow the employee to have a support person present at any meetings related to the dismissal?
- (When dismissal is related to poor performance) Did you warn the employee about their poor performance before the dismissal?
An employee must have been employed for a certain period of time before they are eligible to make a claim for unfair dismissal. In the case of small business the employee must be employed for 12 months before an unfair dismissal application can be lodged. When an employer is not a small business, the employee must have been employed for six months. When a business has had a change of ownership, service with both the first and second employer may count when determining the employment period. An employee has 21 days from the date their dismissal took effect to make an application to the Fair Work Commission for unfair dismissal. The Fair Work Commission is responsible for making decisions of unfair dismissal cases.
Small businesses, those with fewer than 15 regular and systematic employees, have different rules for dismissals. The Small Business Fair Dismissal Code should be followed when dismissing an employee. Dismissals will be considered fair by the Commission when the employer can provide evidence of having followed the code.
Regardless of whether you are a small business or a large corporation, rules set by Fair Work dictate whether dismissals are fair or unfair. It is essential to follow these rules in order to protect your organisation, and to treat your employees fairly. Whilst the process may seem difficult, it will be worth the time and effort in the long run.