Six tips for avoiding unfair dismissal claims

Under the Fair Work Act, if an employee is dismissed in a “harsh, unjust or unreasonable” manner they may be awarded up to six month’s pay by the Fair Work Commission (FWC).

FWC hearings can be energy-consuming and very stressful for all involved – they should be avoided. So here are six tips for avoiding unfair dismissal claims.

1. Give the person a chance to improve

There are very few situations where you can sack a person on the spot. You need to explain what the person has done wrong and provide constructive criticism. Part of this is setting clear and genuine performance targets.

If you feel it is appropriate you may wish to give the employee a warning; though contrary to popular belief there is no legal requirement for you to give an employee a specific number of warnings before they are terminated.

You should first meet with the under-performing 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 the proposed solution has been working.

2. Don’t abuse the process

Often employers dismiss someone because they don’t like their personality, rather than for performance reasons. This is a sure-fire way to land your business in trouble.

You will also need to 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. The right way to dismiss is for businesses to remove under-performing or badly behaving workers, not to get rid of people who are not liked.

3. 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. It is important you are vigilant in spelling-out all the particular allegations of misconduct directly to the accused, as many employers are pinged in court for not making the allegations clear enough to the employee.

The employee then needs to be given a chance to respond. So really you need to make the allegations out to the employee in writing, give them a chance to consider to them and then make a date to have further discussions about it. Even if you are planning to dismiss them, you still to give them a chance and time to respond. You also need to genuinely consider their response.

4. Allow the person to have a support person present for any discussions related to the dismissal

Allowing the employee to bring a support person is yet another element of ‘procedural fairness’ or ‘natural justice’ which you have a legal obligation to apply in a dismissal.

Under the Fair Work Act, the Fair Work Commission should consider whether you allowed the person to bring in a third party (be in a lawyer, union representative or friend) to discuss their performance issues or any other issues related to the dismissal when deciding whether or not to penalise an employer.

5. Be nice about it

Often people litigate in unfair dismissal because they feel angry, humiliated or under-appreciated because of the sacking. 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.

Try to be a nice and non-vindictive about as possible; even if you feel you the person doesn’t really deserve that level of consideration.

Concentrate on the positives, wish them luck, give them notice (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) and offer to help them find another job if you feel it is appropriate.

6. Make sure it is proportionate to the misconduct/poor performance

There are very few things which justify instant (also known as summary) dismissal. It is only fair for a small business employer to dismiss an employee with any notice or warning if they have been involved in theft, fraud, violence or serious breaches of OHS.

Whilst you do not need to show the person committed the breach ‘beyond a reasonable doubt’ it is helpful to avoiding legal sanctions if you report the matter to the police or to the health and safety regulator.

Related Stories