Unfair Dismissal – The Essentials




unfair dismissal 

 

Unfair dismissal is a topic that often makes CEOs and managers shudder.

Defending an unfair dismissal claim can be costly, time consuming and detrimental to the reputation of an organisation.  So the best solution is prevention! The only way to prevent an unfair dismissal claim is to ensure that any decision you make is:

 

  • Fair and reasonable
  • Not harsh or unjust

 

But that’s where it gets tricky.  What does unfair or unjust mean?

 

The Fair Work Act guides us as to what this looks like, however it is case law that tells us how the Act is being interpreted by the Fair Work Commissioners.

 

In over 20 years of practicing HR in some of Australia’s largest organisations, I’m pleased to say that I have only cost my employers and/or clients 5 weeks of unfair dismissal to total.  So, I have a pretty good understanding of what fair looks like.

 

What is Unfair Dismissal?

 

According to the Fair Work Ombudsman (2015), Unfair Dismissal can be regarded as the termination of an employee that is ‘harsh, unjust or unreasonable, inconsistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy’.

 

Blooming HR consultant, Camela Prouzos has come up with the follow acronym to help you remember the critical components used when assessing if a termination is fair:

 

S O R R W (pronounced sorrow)

 

  • S – Was the employee denied the opportunity of a support person present during any discussion relating to the dismissal?
  • O – Was the employee given the opportunity to respond before a final decision was made for the dismissal?
  • R – Did the organisation/manager have the support of a HR professional and should the organisation have known better?
  • R – Was the employee given a valid reason for the dismissal (always put terminations in writing)
  • W – Was the employee given warnings prior to termination?

 

Frequently Asked Questions

 

1.       How many warnings are enough? 

 

How long is a piece of string?  There is no law that states the number of warnings that someone must be given.  You have to use the fair test again.  For example, if an employee received a warning for poor performance and then improved a little, though still not enough to meet the standard, you would want to give them another chance to improve and meet the expectations.

However, if you asked someone to not swear at a customer and you gave them a warning, then the next week they did it again, one warning would be enough to terminate.

Ultimately, when managing poor performance, the general rule is 3 warnings before termination.

 

2.       How long does a warning last? 

 

As a general rule, 12 months.  After that, it would not be deemed fair to use it in a series of warnings.  If an employee was given a warning in March one year for performance and didn’t receive another until March the following year, you would need to start the process again.  It would not be the second warning.

 

3.        Can I terminate instantly?

 

Yes, this is usually in the case of gross misconduct.  What constitutes gross misconduct is often listed in a policy or the employee’s employment contract.  If you do not have either of these, contact Blooming HR for a copy!  It could include things like theft, violence or an action that puts the organisation in serious disrepute.

 

 

We hope that this post has been informative. Stay tuned for our next article!




Comments


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