Worried about a termination turning into an unfair dismissal claim? You have nothing to worry about if all the right steps are taken and if the employee has been afforded with procedural fairness. 

One of the most fundamental duties for HR professionals and managers of any size organisation is when it’s time to dismiss an employee from their position. If the right steps are taken and the employee has been afforded with procedural fairness, then it can be a win-win situation for both parties. However, if not carried out correctly, then it can lead to an unlawful or unfair claim which can tarnish the reputation, viability and profitability of the employer’s business.

What is procedural fairness?

Procedural fairness is when an employee is given the opportunity to defend themselves and raise any mitigating circumstance before a decision is made. Whether the termination of an employee’s employment was procedurally fair or unfair will form the basis of the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth). Let’s review on some of the key points employers need to keep in mind regarding procedural fairness when considering removing an employee from their business.

Harsh, unjust or unreasonable?

The following points will be some of the key factors the Fair Work Commission will determine whether the dismissal was harsh, unjust or unreasonable;

  • It will need to be determined whether there was a valid reason for the dismissal - whether it was performance related or due to the employee’s workplace conduct. Employers need to be careful of the steps they take to ensure that the termination is either based on performance or conduct otherwise they could find themselves in legal battle (e.g. discrimination)

  • Was the employee notified of the actual reason and whether they were given an opportunity to respond to the allegation(s). At times, disgruntled employers may feel that they have enough on hand to dismiss an employee without allowing them a chance to respond, which could get them in a lot of trouble

 

  • Whether these concerns were previously raised and whether the employee was warned that their performance and/or conduct was at an unsatisfactory level. An employer should have the necessary discussions with the affected employee about their performance or misconduct and provide them with all the training and support they need to succeed in their role, before considering disciplinary action and/or termination of employment

 

  • Whether the employer allowed the employee to have a support person in the final meeting or any disciplinary meeting leading to their dismissal. Best practice would be to advise the employee that they can bring a support person to the meeting where their ongoing employment will be discussed. A support person can be another employee, family member, friend or union representative, however they cannot act as an advocate during the meeting

  • Genuinely considering the employee’s responses and not rushing the process. In most situations, it is advisable that when the allegations have been put forward and the employee had a chance to respond, then for the meeting to be adjourned so that the employer has the time to carefully consider all the circumstances as well as the ramifications. This will safeguard the employer in terms of not having arrived at the decision lightly

 

This article is prepared to only provide general information about the topic. It is not intended to be used as advice in any way.

 

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