What Every Business Manager Needs To Know About Unfair Dismissal

UNFAIR DISMISSAL? A term slung around very often.

But what do employers need to know, and probably don’t?

A useful statement from a senior Judge of the employment court in a mediation conference was where he told both lawyers that “it is all about conducting a proper assessment of the risks and making sure your clients understand them”. When considering dismissing an employee, it is probably timely to ask yourself the question – As an employer have you considered any and all risks that termination of an employee may bring upon you?

As an employer why should you avoid unfair dismissal claims and how?

An unlawful dismissal can cost an employer in terms of time, money, and reputation. Claims can be multiple so are the remedy(s). To properly dismiss and to minimize your penalty risks, simply ask these questions from yourself, although the list is not exhaustive:

• Is termination the only way to address the employee’s conduct?
• Is this in accordance with the termination clause in the employee’s agreement?
• As a decision-maker, have you directed your mind correctly to the reason for termination and the consequences of your decision; and
• As a reasonable person in the employee’s shoes, do you consider the dismissal fair and reasonable?

What if the termination is the right call?

Whether it is a simple termination or summary dismissal, always double-check your facts, notes, and the history that led the situation to become what it is before you. At best, if the termination call is the right one, and unless the situation is not serious to warrant summary unfair dismissal, make sure that:

• You are not overreacting to a matter that may deserve a lesser action than termination;
• You have proper procedures in place to investigate the issue that gave rise to the termination and before terminating anyone;
• You give the employee a chance to narrate their side of the story within a reasonable time and accord them with the right to have support persons with them throughout the process and when you are investigating the matter before you;
• To allow a fair investigation, you provide the employee with paid leave (This may sound costly, but the result will generally be to your benefit in the long run); and
• You only terminate if the agreement allows you to do so, and ensure that you are correctly interpreting your termination clause.

What if you are unsure that termination is the right call or not?

The employer’s quagmire would be when the employer is unsure of dismissing an employee or not. Obviously, it is a natural expectation that as an employer you wish to save face with other employees, and accordingly do not want to take the wrong step. It is, therefore, always better to seek qualified employment law advice if you are unsure whether to fire or keep an employee.

Can you fire your employee when the relationship of trust and confidence is broken?

The answer may be drawn from a law maxim; “lex neminem cogit ad vana seu inutilia peragenda” which means; the law does not compel one to do useless things.

That is, if you and the employee cannot work side-by-side and you have valid reasons, providing such a term is stipulated in the employment agreement, you may terminate the employee. To do so, however, you need to ensure you have valid supporting documents as proof that the relationship of trust and confidence between you the employee, was broken such that the relationship was unsustainable. You also need to ensure that in a valid termination, all accrued entitlements are paid to the employee without delay or hindrance and that you document everything you do.

If you face the difficult task of firing your staff, for whatever reason, then speak to an experienced employment lawyer on 1800 217 217 today.

Article Source: employment law brisbane 

How To Face Employment Agreements During Harsh Economic Conditions

Most adults, at one point or another, are faced with a form of an employment contract. For some, it is presenting an employment agreement to a potential staff member, and for others, it is receiving an employment agreement as an employee. There are many interests at stake for both sides, and typically it involves some type of negotiation. In harsh financial conditions, this process becomes even more critical.

But what is at stake here is not only complying with the statute when drafting an agreement but believing in the idea that any agreement to be drafted must be fair and clear. Assuming that we have a neatly crafted employment agreement before us, should we look for what I call employment golden catches. The short answer is, yes.

Cover yourself

The first step before inking anything is to never rush it up. Take that draft with you home, read it and understand it. Once, you are certain the terms satisfy your objectives then finalize it with your employer. Always remember that in any negotiation the duty of good faith is obligatory for both employer and employee. The Fair Work Act 2009 s 228 [the Act] sets out the good faith bargaining requirements. In simple terms, this is not an option for either side. It is a must-thing-to-do. The duty is wider in scope than the implied mutual obligation of trust and confidence.

Know what you’re getting yourself into

The second step is to know what type of employment agreement you are about to enter into. Are you a casual employee, part-time, full-time, or an independent contractor? It is very crucial, especially for the employees to know the distinction between being an employee or an independent contractor. For if it is the latter, and although the Act provides for some general protections to independent contractors and their principals, it does so in conjunction with the Independent Contractors Act 2006.

Take precautions

The third step is to observe the famous saying that, “prevention is better than cure”. Never try to doctor yourself. I would seldom form my mind on any agreement that would either include my interest or the interest of people I may emotionally attach to. An emotion while being capable of building a notion, is quite capable of destroying it as well. It can easily overcome the power of wisdom if wrongly given due consideration. Remember the right to seek independent legal advice is yours and only yours to pick.

Install exits

The fourth step is the entry-exit mechanism. Take the famous saying; “I won’t enter a place if I don’t know how to get out”, literally. Whether you are an employer or an employee, you want to know your rights such as what entitles an employee to remain at a workplace, or keep the employee at the workplace. As an employee, you want to know what may enforce your way out, or as an employer, how you may show your employee the way out. Approaching a situation with a procedural mindset will help work through these problems. Often employers are caught in wrongful dismissal claims and genuinely believe they were acting in accordance with the law or employment contract at the time they made the dismissal decision. This is only to learn later, that their decision was overturned by the court.

Disclaimer (irritating yet important!): The information on this page is general information only and must not be relied on as legal advice. For legal advice in negotiating the terms of your employment agreement, speak to an experienced employment agreement lawyer on 1800 217 217.

You may also find this article helpful Employment Law Matter Brisbane

Article Source: Employment Agreements