The Unfair Dismissal Claim: Four Things You Need To Know When An Employee Thinks They Are Unfairly Let Go…

 In Poor Performance

We hope you got some interesting insights out of last week’s blog. Did it make you reflect? Did you take out your contracts and have a look at whether they’re up to date?

If you haven’t, we encourage you do, as well as revise the other points in the blogs, as they could save you a stack of time and hassle down the track.

This week we’re talking about when an employee thinks they have unfairly been let go. We are mainly referencing the Unfair Dismissal Claim however an employee who has been dismissed can also pursue relief through the Adverse Action Claim, Genuine Protections under the Fair Work Act, Discrimination under federal, state or territory equal opportunity legislation or under Common Law for breach of contract which the below tips will assist with as well.

*Again, we provide the Disclaimer that we are not legal practitioners and do not replace the advice you should receive from them where appropriate.

Today we’ll cover three things you need to know about to protect you in some instances against unfair dismissal claims.

So… firstly what is an Unfair Dismissal Claim?

An unfair dismissal is considered to be when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

Employees who are NOT eligible to claim for unfair dismissal include:-

  • an employee who has served less than the relevant minimum period of employment
  • is award/agreement-free and whose annual rate of earnings exceeds the high income threshold
  • where the reason for the dismissal was a case of genuine redundancy, or
  • an employee who is pursuing other termination of employment proceedings.

Even if an employee has absolutely done the wrong thing, you as the employer could still be at risk.

When it comes to unfair dismissal, it is not necessarily just about what the employee may or may not have done. It comes down to the process you’ve actually followed to dismiss them.

1. Schedule in advance a performance or conduct discussion

It is important to provide communication in advance that a performance and/or conduct discussion is to occur so the employee does not feel ambushed. This can be done by email to let them know the nature of the discussion, a formal letter, verbally and/or set up in a prior session to discuss.

Of course, preference is that this is in writing at least 24 hours before the meeting as a guide (especially as moves towards termination) and sets out clearly what you want to discuss however to be aware, it is certainly very awkward for both parties – particularly with open plan environments where you may be sitting close to the staff member who is then waiting to hear what your concerns are so balancing this with the human approach should be considered.

2. Provide an opportunity to have a support person

Did you provide an opportunity for them to have a support person or somebody present during this discussion?

This is something that is commonly missed in the dismissal process and should be offered (even if the employee does not take it up). It is also good to have another person in the room to verify the discussion.

Note the role of a support person generally is to be in the room and be present as a witness. This person is not there to speak or represent the person on their behalf.

3. Did you consider their response + offer enough support in the role?

Did you go into the discussion with a predetermined judgement of what their response would be?

It’s really important to ensure you enter such discussions with a view of actually trying to assist the development of performance and/or conduct and listen to what the employee actually has to say about why they have not met the requirements and jointly devise a solution.

An employer does not have to give an employee three warnings, or even 1 warning but an employer should give the employee a chance to fix any performance issues. If an employer fires an employee who them makes an unfair dismissal claim, the Fair Work Commission will usually take this into consideration.

The main thing to avoid industrial action is to ensure that any termination decision is not a surprise, and should be something they are expecting or aware of wherever possible.

Making sure team members are super clear on standards, expectations, KPI’s, values and consequences of failing to meet them will assist. This may come in the notion of previous warnings, coaching, assisting with task management/prioritising, training, team meetings, policies and/or discussions.

For it not to be seen as predetermined, this means that you are not already going in with a preconceived view. An example of this may be providing the team member with a warning letter in the session that has been pre-written and has not considered anything they had to say in the meeting.

The team member should be provided with an opportunity to improve their performance. It’s crucial to be able to invest time in allowing an employee a chance to step up, especially after all that is invested in the initial recruitment of that staff member.

Also it is important to ask the question – is there anything you could do to put the mirror up to see if you could be doing anything better to help?

Having a conversation around how they think they’re going in the role and if they’re aware of any areas they’re struggling in or where they could use any support as EARLY as you spot the problem is also recommended.

4. Is the dismissal compliant with the contract you are employing them under?

The fourth thing to be aware of is ensuring the dismissal is in line with the instrument, award, policy or the terms and conditions they are engaged under.

Things like the notice needs to be compliant with the vehicle that you’re employing them under or complying with your termination policy if you have one in place for example is important.

I hope those tips have been useful in getting ahead. These are not designed to obviously not STOP you from having performance discussions, but putting your best foot forward when you do need to have them.

Watch more below.

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Paulette Kolarz

Customer Support

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