If you have all the time and money in the world to be combing through HR records, attending mediation meetings and preparing responses to claims, then stop reading now. If not, here are some quick tips to ensure your time is spent growing a successful business, not responding to unfair dismissal claims.
If an employee thinks they have been unfairly dismissed, they can apply to the Fair Work Commission (the Commission) seeking reinstatement or compensation. The Commission then, after countless meetings and discussions, will make a decision on whether a dismissal was harsh, unjust or unreasonable. Follow the steps below to ensure you never get to this point or, if you do, the decision goes your way.
1. Ensure you have a valid reason for the dismissal
Valid reasons must be related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees). You may get into trouble if you dismiss a worker for being sick or injured and taking less than 3 months off or if they require you to make reasonable adjustments to allow them to safely perform their role after an injury or illness.
2. Talk to the employee
Do not put off having difficult conversations about performance or other issues in the workplace. The longer you wait to discuss issues, the more difficult a satisfactory resolution becomes. Give notice and allow employees the chance to respond to all issues. Having performance reviews every 6 – 12 months will help with this as well. All responses to sub-standard performance and conduct must be consistent, documented and open for review.
3. Allow them to have a support person attend meetings
The role of a support person is not to talk on their behalf but to assist in preparing for the meeting, provide emotional support and other supportive actions (for example, taking notes). A support person can be a person of their choice or a union representative.
This is a particularly important consideration where there is question as to the capacity of the employee to respond to the allegations put to him or her without such a support person being present.
Click to download the Fair Work Commission Unfair Dismissal Flowchart
To find out more about your Human Resource requirements, contact the team on 07 3878 9355 or email firstname.lastname@example.org.