What is Dismissal And Five Tips to Avoid Unfair Dismissal in AustraliaPosted by Maurer Nichols on February 13th, 2021 
Being sacked from your work can come as a huge shock, and it often feels terrible. The legal term for being fired or sacked is ‘dismissal.’ Your employer is allowed to dismiss people, but you can challenge your dismissal if they do it unfairly.
Every day, more than 40 unfair dismissal claims are stuck against Australian employers. Many of these expensive claims could have been avoided if the employer had followed proper performance management or disciplinary process for misbehaving or underperforming employees.
What is Fair?
A fair dismissal is one that is based upon one of five potentially appropriate reasons. These are the individual’s conduct, qualifications or capability for the job, redundancy, statutory duty, or restriction prohibiting the employment being continued or because of a substantial reason supporting the dismissal.
What is Unfair Dismissal?
One of the most common legal risks for an employer in Australia who terminates an employee is an unfair dismissal claim under the statutory jurisdiction in the Fair Work Act 2009
A person is unfairly dismissed within the meaning of the Fair Work Act 2009 (Cth) if the dismissal was:
harsh, unjust, or unreasonable;
not a genuine redundancy; and
not compatible with the Small Business Fair Dismissal Code (if the employer is a small business).
Remedies for Unfair Dismissal
The remedies available to an employee for unfair dismissal may include:
reinstatement; or
compensation (capped at the lesser of 26 weeks’ pay or half the amount of the high-income threshold).
Handy Tips for Avoiding Unfair Dismissal in Australia
Unfair dismissal claims should be avoided as they can be a costly experience for the employer. To decrease the risk of unfair dismissal claims, employers should consider the following tips:
1. Act Quickly:
Don’t wait until it’s too late – employers should act immediately when an employee shows performance-related issues or engages in improper workplace behavior. Even if the employer has a valid reason for terminating the employee, significant delays in raising inappropriate workplace behavior can dismiss unfairly.
2. Be Thorough:
Carry out a fair and thorough investigation of inappropriate workplace behavior – an investigation conducted by procedural fairness and relied upon documentary evidence in terminating the employee will help the employer with its legal defenses in the case of an unfair dismissal claim.
3. Detailed Records:
Keep detailed and accurate written records of the disciplinary and termination process. Keeping complete records of the dismissal process can determine the difference between success and failure when defending an unfair dismissal case.
4. Crime and Punishment:
Ensure that the crime suits the punishment. Employers should ensure that it has a valid reason for terminating an employee. Substantive fairness claims that an employer has a substantive reason for terminating the employee, such as willful or deliberate misconduct or consistent bad performance.
5. Procedural Fairness:
During the disciplinary process, an employee should be afforded procedural fairness. This means that the company should show no favoritism and apply the disciplinary process consistently and fairly to all employees. The Fair Work Act 2009 (Cth) claims that the employee be:
notified of the accusations raised against them;
provided with an opportunity to react to the allegations;
provided with written warnings before dismissal (except where it is appropriate to dismiss an employee summarily); and
allowed to attend a disciplinary meeting with a support person.
Need further advice?
Click here to get practical advice and guidance to contest unfair dismissal in Australia.
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