Defending a dismissal

If you’re one of the 15,000 businesses that face an unfair dismissal application each year in Australia we can help.

UNFAIR DISMISSAL

Even if you think you did everything right, treated the employee fairly or that they were simply in the wrong it pays to take an unfair dismissal claim seriously and to react quickly if you receive notice of a claim.

We can quickly assess your situation and provide you with advice that will minimise the impact of the claim on your business.

General Protections/Adverse Action claim.

A General Protections/adverse action claim can be brought by an employee if you as an employer have taken action against them which results in them being in a less favourable position and you did so for a reason protected under the Fair Work Act.

This might include given them less work or less pay because of a range of factors including race, gender, sexuality, pregnancy, age etc or because of something they’ve done like complain about conditions or exercised their right to sick or other leave.

While a claim for unfair dismissal has particular requirements around length of service and amount of money the employee is earning, a general protections claim does not and can be lodged before or after employment has ended and may cover issues other than dismissal including altering someone’s pay or sham contracting.

We can help you prepare your formal response if you receive a general protections claim, guide you through a conciliation process and help you arrive at a settled solution.

On rare occasions these matters may progress to a formal arbitration or a Federal Court matter – we can provide expert advice every step of the way to put you and your business in the best legal position possible.

I want to dismiss someone!

The rules around unfair dismissal, bullying and discrimination can make firing or dismissing someone a minefield for employers. If you want to dismiss someone we strongly suggest you talk to us for some critical advice about what you should and shouldn’t do. Do the employees’ actions justify dismissal? Have you taken the right steps? What severance package should or shouldn’t be offered?

Always keep detailed records of employee performance, communications between you and the employee, breaches of policies and other behaviour so that you can present clear evidence of the true situation. This information will be invaluable in helping you best protect your business.

What does the Fair Work Commission consider in an unfair dismissal claim?

The facts of each unfair dismissal case are different but there are ‘broad categories’ of workplace events that have been considered in the Fair Work Commission – for example:

• poor performance – not meeting performance indicators set by the employer
• fighting in the workplace
• intoxication at work
• breaching a health and safety directive
• a breach of the employer’s policy

However, just because an employee is alleged to have engaged in certain behaviour, doesn’t mean you are safe from an unfair dismissal claim.

One of the leading cases involves fighting in the workplace. In AWU-FIME Amalgamated Union v Queensland Alumina Ltd we see that the Commission identified that fighting at work does not necessarily give an employer an automatic right to dismiss an employee from their job. Other circumstances need to be considered. Such as whether the employee was provoked or acting in self-defence. This is why we suggest talking to us before taking action on a dismissal or as soon as possible after you become aware of an unfair dismissal or general protections claim against you.