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 

What Every Employee Needs To Know About Unfair Dismissal

There are many versions of what people may conceive as “unfair dismissal”, or commonly known as unfairly being fired from their job, depending on what side of the fence they are on.

What is employee unfair dismissal?

In general, it refers to a situation when an employee has been fired or been pushed to the edge unlawfully, so as to force him/her to resign from their position for no valid reason recognized by the current laws.

How do you know if your employer fired you unfairly?

The rule of thumb is to look at your own employment agreement first. Look for the following four specific things, although the list is not exhaustive, it should pretty much give you some idea of what unfair dismissal is:

• How long you have been working for your employer and whether your employer was a small business with fewer than 15 employees;
• Look to see if the reason for your dismissal accords with your agreement under its termination clause;
• Look to see if the dismissal was proportionate with the act or omission you may have done (that is: whether the dismissal was harsh or unjust); and
• Look to see if your employer followed a fair process to have you dismissed.

Does the termination clause in the employment agreement means that you cannot fight your unfair dismissal?

No. But the answer here is subject to a couple of variables. For instance, an employer might deem that they have acted upon the termination clause fairly and that they were right in firing the employee in the first place and nothing was harsh, but it may well be the opposite. It is a matter of right interpretation of the termination clause, the laws, and the advice that an HR manager or the decision-maker may receive or give at the time in question.

What laws in Queensland protect you against employee unfair dismissal?

The provision of unfair dismissal is covered by the Fair Work Act 2009. Section 385 of the Act defines “unfairly dismissed” as a dismissal of harsh or unreasonable nature, not consistent with the Small Business Fair Dismissal Code, and that the dismissal was not a case of genuine redundancy.

What rights do you have at the workplace and can you get fired for exercising those rights?

You cannot get fired for exercising the rights detailed below (That is: your employer cannot take adverse action against you just because you have exercised those rights). Please note that the list here is not an exhaustive one, but should shed some lights on your workplace rights:

• You cannot be bullied or discriminated against at your workplace and if you reasonably confront that and you are fired, your employer may have taken adverse action against you;
• Because you are a member or not a member of a union;
• Taking or not taking part in industrial activity;
• Having a protective attribute;
• Wearing any religious requirement or symbol such as wearing Hijab, or other religious headgears or symbols
• Forcing you to do something against your will; and
• If you are subject to undue influence or pressure

If you are fired, how long do you have to lodge your claim and where?

If you deem you have been unfairly dismissed, you have 21 days after the day you are notified of the dismissal to apply to the Fair Work Commission for unfair dismissal. It, of course, is best to seek legal advice immediately. This can benefit you among others, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue and more importantly if your claim is lodged within the prescribed time.

Here at Aylward Game Solicitors out the team is ready to assist you with any employment or workplace-related legal situations on 1800 217 217.

 

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Article Source: Unfair Dismissal