What is unfair dismissal?
Unfair dismissal is where an employee is terminated from employment in an unreasonable and unjust manner.
How can an employer avoid unfair dismissal claims?
There are many ways to protect yourself and avoid an unfair dismissal claim.
- Ensure that there is a valid and concrete reason for the dismissal of the employee. Terminating an employee cannot be premised on bias or prejudice.
- Notice period should be followed according to the NSW Government National Employment Standards.
- Ensure that the employee has the opportunity to respond if they are terminated.
- Ensure that the employee has the option to have a support person in relation to the unfair dismissal
- Ensure that the dismissal is in writing unless the employee is a casual or has carried out serious misconduct
An employer can put into place other measures to prevent dismissing an employee unjustly. There are measures such as having a protocol or a document to note what is said in meetings or any exchanges. This prevents any misunderstandings, if there are any, later down the track.
It is necessary to establish the roles of each employee. For example, clearly distinguishing who has the ability to hire or terminate employees. Each employees’ responsibilities should be made clear to them, once employment starts. This avoids any confusion about responsibilities and roles in the workplace if termination arises.
A certain amount of unfair dismissals is due to differences in behaviour or personalities. As this is difficult to avoid completely, it is helpful to put in place some simple measures such as managers and employees having regular meetings to discuss what is expected and giving the employee an opportunity to ask questions and discuss issues.
Also, avoiding on the spot dismissals. There may be scenarios where an employee acts in a manner which breaches their contract or their actions are significantly unreasonable. In cases like these, it is necessary to ensure that there is another supervisor or manager who is involved to resolve the issue. The record of the meeting and conversation should be kept.
If you are dealing with or simply wanting to avoid unfair dismissals, please contact JFMLAW unfair dismissal lawyers. We can help you improve your situation for peace of mind.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.
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- How to avoid unfair dismissal claims - November 28, 2018