Employer Tips: How To Minimise Or Prevent Unfair Dismissal Claims
In 2015, the Fair Work Commission reported close to 15,000 applications were lodged for unfair dismissal.
There are a number of simple steps we find are often overlooked by employers that can minimise or prevent unfair dismissal claims.
1. Clear pre-employment communication
From the outset, employers need to be clear about what is expected from their employees. Coherent and unambiguous employment agreements are vital. In conjunction with an employment agreement, any relevant policies and procedures regarding workplace issues should also be given to the employee. By providing a clear guide of the expected behaviours, and what constitutes a breach of these expectations, employers reduce their risk of claims.
2. Maintain written records
Employers should keep written records of all dealings with employees. This is particularly important when issuing warnings. Previous warnings issued to employees are a relevant consideration in these matters. The maintenance of written records will not only satisfy employers’ legislative requirements, but will also assist in terms of evidence should the employer face an unfair dismissal claim.
3. Exercise procedural and substantive fairness
According to employment law in Australia, dismissal is unfair if the dismissal was harsh, unjust or unreasonable. In responding to an application for unfair dismissal, an employer must demonstrate that there was a valid reason for dismissing an employee. Additionally, employers should also establish that the following occurred prior to termination:
1. the employee was notified clearly of the reason for dismissal
2. the employee was provided an opportunity to respond
3. during discussions surrounding the potential dismissal, employers allowed the employee to have a support person present.
4. Obtain advice before dismissal
In some circumstances (theft, fraud, violence and serious breaches of Workplace Health & Safety rules) it is fair for an employer to dismiss an employee without notice or warning. This is referred to as summary dismissal. In all other instances, there is a procedure leading up to termination which must be considered and applied to mitigate risk of an unfair dismissal claim.
Legal advice should always be sought prior to terminating an employee.
5. Become familiar with online resources
There is a lot of information about unfair dismissal procedures available to employers on the Fair Work Ombudsman and Fair Work Commission web sites:
Fair Work Ombudsman: https://www.fairwork.gov.au/
Fair Work Commission: https://www.fwc.gov.au/
We encourage all employers to consider the material available on these web sites to help minimise or prevent possible unfair dismissal claims.
If you need advice about unfair dismissal or any aspect of employment law in Australia, contact the experts at Rouse Lawyers today.