What is an unfair dismissal?
An unfair dismissal happens when you sack an employee in a harsh, unjust or unreasonable manner.
- Harsh means your decision to sack them was disproportionate to the offence that they committed.
- Unjust means you did not have a valid reason to sack them.
- Unreasonable means you acted unreasonably when dismissing your employee, or you did not give them procedural fairness.
It is also considered an unfair dismissal if you make an employee redundant when it is not a genuine redundancy.
A dismissal can also be considered unfair if you are a small business (less than 15 employees) and you don’t follow the Small Business Fair Dismissal Code.
Defending an unfair dismissal claim
When dismissing an employee, it is important to take a number of steps to reduce the chance of an unfair dismissal claim.
Consider the elements – harsh, unjust or unreasonable.
Did you have a valid reason for dismissal – if so what evidence can you provide to back this up?
Was the person notified of the reason for dismissal and did you give them an opportunity to respond to any allegations?
If the dismissal was performance based – did you give the employee an opportunity to improve?
If it was misconduct – was a show cause process undertaken?
Did the employee ask for a support person?
Was the outcome proportionate to the conduct or performance issue?
Were the economic and personal consequences of the employee considered?
Other things to consider
Has the employee had previous misconduct or performance issues that you can rely on in your defence?
Do you have any witnesses that you can rely on – and will they provide a written statement?
Get advice early
The best way to avoid a claim for unfair dismissal is to get professional advice as soon as possible, preferably before you dismiss an employee or commence an investigation or disciplinary process.
Our expert team of Australian employment law experts at Industrial Relations Claims can guide you through the steps you need to take to avoid an unfair dismissal claim.
- conduct an independent investigation into allegations of serious misconduct by staff on your behalf, and provide you with a detailed report and advice on how to proceed with the matter; or,
- help you performance manage a difficult employee to ensure they have a smooth and uneventful exit from your business.