As an employer it is important that you are aware of the legal obligations you have to your employees and manage your relationship with them appropriately and within the legal framework that exists as part of Australia’s employment laws. This is especially true when it comes to dismissing an employee and it is vital that you understand the Unfair Dismissal Code and what exactly constitutes ‘unfair dismissal’ in order to limit any potential claims through Fair Work Australia.
There have been significant changes to Australia’s unfair dismissal laws in recent years, so it is important that as an employer you make yourself familiar with the most up to date laws governing the dismissal of employees.
Assistance for Small Business Owners:
If you are a small business owner, with less than 15 employees, then there is extra assistance in place to manage any potential claims, including a Fair Dismissal Code, which sets out a series of steps to be followed in order to establish that a fair dismissal process has been followed.
The key steps are providing an employee with:
- A valid reason for their termination;,
- A warning, given prior to termination, indicating the possibility of termination; and
- A reasonable chance has been provided to the employee to rectify the problem that may lead to their termination.
As an employer you must insure that you document the above steps and have on record things like a checklist, copies of warnings, or signed statements that can prove that these steps have been followed in terminating the employee.
The Unfair Dismissal Claim Process:
Where an unfair dismissal claim is made by a former employee the process of dealing with the claim intends to try and get to the heart of the matter quickly and with less formality and legal involvement.
Claims will continue to be dealt with on the basis of whether a “fair go all around” has been provided.
Exceptions:
Under the Fair Dismissal Code, it is not intended that claims can be brought by:
- An employee engaged for a specified period of time or particular task;
- An employee involved in a training arrangement;
- A person who has been demoted, providing it does not involve a significant reduction in their remuneration or duties; or
- A genuine redundancy situation.
What Constitutes Unfair Dismissal?
When Fair Work Australia gets involved in dealing with an unfair dismissal claim, it is required to take into account the following considerations:
- Was there a valid reason for the dismissal related to the person’s capacity or conduct (including the effect of their continued employment on the safety and welfare of other employees)?
- Was the person notified of that reason?
- Were they given a fair opportunity to respond?
- Were they allowed to have a support person present during any discussions about their dismissal?
- Had they been warned prior to the termination of their employment.
- The extent to which the size of the businesses, or the absence of any HR expertise, might impact on the procedures followed by the employer.
- Any other matters it considers relevant.
If Fair Work Australia finds that a dismissal is unfair, it may order the employer to rehire the employee, or pay the employee compensation of any amount, capped at the lesser of 26 weeks pay or $54,150.