Proactive Guidance on Minimising Unfair Dismissal

As a member of the Fair Work Advisory Panel, NB Employment Law has observed a significant rise in business owners seeking guidance and support on Unfair Dismissal and General Protection Claims. Navigating these claims can be challenging for employers, and legal disputes can lead to substantial costs and damage to business reputation if mishandled. In response to this increase in inquiries, we’ve prepared a comprehensive guide to help employers proactively manage workplace issues and minimise the risk of facing these claims.

 

Understanding Unfair Dismissal and General Protection Claims

Unfair dismissal occurs when an employee is terminated in a way deemed harsh, unjust, or unreasonable under the Fair Work Act 2009. The Fair Work Commission evaluates whether the dismissal was justified, considering factors like redundancy or adherence to the Small Business Fair Dismissal Code. Employers must handle terminations for performance, misconduct, or business needs carefully to avoid legal claims.

General Protection Claims arise when an employee believes they were treated unfairly due to exercising a workplace right or facing discrimination. Such claims can result from dismissal or other negative actions like demotion or denial of benefits, especially if viewed as retaliation for asserting their rights.

Proactive Strategies to Avoid Unfair Dismissal and General Protection Claims

With the potential financial and reputational risks associated with unfair dismissal and general protection claims, employers should adopt proactive strategies to reduce their exposure to these disputes. Here are key steps every employer should take:

1. Develop and Implement Clear Workplace Policies

Well-structured, transparent policies are critical to managing employee performance, conduct, and dismissals. Ensure that your workplace policies cover:

• Employee performance expectations.
• Disciplinary actions for misconduct.
• Procedures for managing underperformance.
• Redundancy policies and criteria.

All employees should be aware of these policies, and they should be consistently applied across the workforce. Keeping policies up to date with relevant legislation is equally important.

 

2. Ensure Procedural Fairness in Termination

When terminating an employee, procedural fairness is crucial. The following steps should be taken to ensure compliance:

• Provide written warnings: Before terminating employment for performance-related reasons, the employer must provide written warnings and give the employee a reasonable opportunity to improve their performance. A fair process includes ongoing discussions with the employee, outlining expectations clearly, and supporting their improvement where necessary.
• Genuine Redundancy: If the reason for dismissal is redundancy, ensure that the position is no longer required due to operational changes, and the employee has been consulted according to the law. Offering redeployment options where applicable is also essential.
• Allow for a fair hearing: Give the employee an opportunity to respond to any allegations or performance concerns before making a final decision on termination.

Following these steps can prevent many claims of unfair dismissal, as procedural fairness is a key component of the Fair Work Commission’s assessment.

 

3. Document Everything

Maintaining detailed documentation of employee interactions is essential in defending against unfair dismissal claims. Proper records provide a solid foundation for demonstrating that the employer followed all necessary procedures. This includes:

• Performance reviews: Keep records of all performance-related discussions and any formal warnings given to the employee.
• Termination meetings: Document the steps taken during the termination process, including meetings held, warnings provided, and the employee’s responses.
• Redundancy consultations: Ensure records are kept of any consultations regarding redundancy and any redeployment offers made to the employee.

Documentation can serve as crucial evidence to justify the termination if a claim is made.

 

4. Train Your Managers

Equip your managers and supervisors with regular training on workplace laws, including unfair dismissal and general protection claims. Managers play a vital role in employee performance management, and their interactions with employees can either help prevent or contribute to disputes. Training managers in:

• Performance management techniques.
• Conducting fair disciplinary processes.
• Handling workplace complaints.

This will ensure a consistent and lawful approach across the organisation, minimising the risk of claims.

 

5. Seek Legal Advice Early

If you’re considering terminating an employee or if workplace issues escalate, seek legal advice before taking action. A legal professional can help ensure that all procedures are followed correctly and that your business is protected from potential claims. Early legal intervention can prevent a simple issue from turning into a costly and time-consuming legal dispute.

 

 

Responding to a Claim

Despite best efforts, businesses may still face claims of unfair dismissal or general protections. In these cases, understanding the next steps is crucial.

1. Submit a Timely Response

Once an unfair dismissal or general protection claim is made, the employer must submit a formal response to the Fair Work Commission. Typically, an employer must complete Form F3 (Employer’s Response) within 7 days of receiving the application. This form provides the employer’s version of events and outlines why the dismissal was fair. Failing to submit the form within the required timeframe may lead to penalties or a default judgment.

 

2. Participate in Conciliation

In most cases, the Fair Work Commission will offer a conciliation conference before any formal hearings take place. This process is designed to encourage settlement and avoid the need for a costly hearing. It’s highly recommended that employers actively participate in conciliation as it provides an opportunity to resolve the dispute early on.

 

3. Prepare for a Hearing

If conciliation fails and the matter proceeds to a formal hearing, it’s essential to prepare thoroughly. The Fair Work Commission will provide directions for the submission of evidence, documentation, and witness statements. Having an experienced legal team by your side is vital at this stage to ensure the strongest defense is presented.

 

 

Compensation and Reinstatement

The Fair Work Commission may award compensation to the employee if the dismissal is found to be unfair. The maximum compensation is six months’ wages or a total of $87,500, whichever is lower. However, in practice, most employees receive between 5 and 7 weeks’ pay. In rare cases, the Commission may order reinstatement of the employee to their former role, though this is uncommon.

 

 

Protect Your Business

Taking proactive steps to manage employee performance and follow correct procedures is essential for protecting your business from unfair dismissal and general protection claims. At NB Employment Law, we are committed to helping businesses navigate these complexities and achieve practical solutions. Our experienced team can provide advice on managing workplace issues, preparing for dismissal, and defending against claims.

For more information or to book a complimentary consultation, please contact Joe Ramanlal at +61 7 3876 5111 or email us at [email protected]. Let us help safeguard your business from unnecessary legal risks.