Unfair dismissal claims are every employee’s worst fear. Here are some common cases and scenarios of unfair dismissal in Australia that everyone should know about and learn to avoid. If you are an employer, you can learn to avoid such happenings through the correct HR procedures.

What Constitutes As Unfair Dismissal?

According to Australian workplace laws, legislation and the Fair Work Act, unfair dismissal refers to an instance whereby an employee is dismissed from their position in an unreasonable, unjust or harsh manner.

A dismissal can be considered harsh, unjust and unfair if the worker was:

  • Dismissed in any manner listed above;
  • Let go without the correct dismissal procedure;
  • Not provided with the opportunity to have a support person
  • Not given an opportunity to respond
  • Or dismissed by a small company that did not follow the Small Business Fair Dismissal Code.

COVID-19 And Unfair Dismissal

This has to be the most relevant scenario out there due to the global pandemic that is currently wreaking havoc on everyday life (as at April 2020). With the unsettled economy and some forced self-isolation and quarantines in Australia, the workforce is looking a little unsteady as well, at that in some cases may be a massive understatement with Hospitality and tourism pretty much disseminated.

Know this, the workplace laws are still in place and unfair dismissals that are related to the pandemic will be treated like any other dismissal case. There have been updates and advice posted on the Australian Fair Work Commission website – it is strongly advised that all employers make themselves familiar with these. At present, the gist of it is that there are procedures in the works for businesses that are impacted by the pandemic.

It has been encouraged that employers and members of the workforce work together to maintain business continuity. The goal is for beneficial and workable solutions to be found for each workplace and circumstance. It is in times like this that treating your teams correctly could be the difference in how you come out into what Fresh HR Insights has coined “the new world of working”.

The current options for employees that aren’t able to work include paid leave and unpaid leave. Updates on this can be found on the official website along with other options and scenarios for workers and businesses alike. Included in the listings are entities that are eligible for government financial support.  Accountants are all over the JobKeepers so it is advised that you make sure you have made contact with them and

Sham Redundancy (not a genuine redundancy)

This is a pretty common sight within the category of unfair dismissals. Sometimes an employer will terminate a member of their workforce for alleged ‘redundancy’. The truth of the matter is usually uncovered upon investigation.

The way that this sham is revealed as such is when:

  • The worker could have offered assistance, retrenched, in another area of the company;
  • The vacated position needs to be filled by another therefore the work was still there;
  • Or the company failed to consult with the worker before deciding to make their position redundant.

It is STRONGLY recommended that an employer always gets advice when looking at redundancy. All awards and registered agreements have a consultation process for when there are major changes to the workplace, such as redundancies. The consultation process sets out the things the employer needs to do when they decide to make changes to the business that are likely to result in redundancies.

A failure to comply with those consultation obligations means that an employer:

  • will not be able to establish that a person’s dismissal was a case of “genuine redundancy” under s389(1)(b) of the Fair Work Act (FW Act) and therefore is at risk of an unfair dismissal claim;
  • may be required to participate in a dispute settlement procedure under the enterprise agreement if this is activated by a union/employees; and/or
  • may be ordered by a Court to pay penalties and/or compensation for breach of an award/agreement (in addition, interim orders may be made including temporarily preventing the employer from implementing any redundancies).

Discrimination

Plain and simple, it is unlawful to terminate a worker if there is any hint that it is on discriminatory grounds. This includes but is not limited to an employee’s sex, age, familial responsibilities, nationality, political opinion, religion, marital status, sexual orientation or race.

Thankfully this is not one of the top reasons for unfair dismissal cases these days, but these cases do still occur and it’s crucial that, as a company, any dismissal is not construed as having a discriminatory basis.

NOTE

It’s not discrimination if the actions:

  • are allowed under state or federal anti-discrimination law
  • are taken against an employee of a religious institution to avoid harming the organisation’s religious beliefs
  • do not relate to one of the protected attributes, or
  • relate to the necessary requirements of the job. 

When A Workplace Right Was Exercised

Believe it or not, simply exercising one’s right has gotten employees sacked in the past. It is against workplace laws for anyone to be dismissed for intending to or exercising a workplace right. This would be a breach of the general protection’s provisions of the Fair Work Act of 2009.

Included within the category of workplace rights is a rightful benefit claim, participating in procedures, filing a complaint – the list goes on. General Protections claims are often difficult to navigate and can have costly implications.

The general protections have been introduced to:

  • protect workplace rights
  • protect freedom of association
  • provide protection from workplace discrimination, and
  • provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

A person (such as an employer), must not take any ‘adverse action’ against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

Adverse actions that can be taken against an employee or potential employee might include:

  • dismissing them
  • not giving them their legal entitlements
  • changing their job to their disadvantage
  • treating them differently than others
  • not hiring them
  • offering them different (and unfair) terms and conditions, compared to other employees.

Terminations Without Due Process

If an employer does not follow the proper dismissal process (be procedurally unfair), the terminated employee is at liberty to file for unfair dismissal. As a business, this is where knowing and exercising the correct disciplinary process is crucial. We have seen many a case where a dismissal was deemed to have been a fair reason BUT the process was deemed to be harsh and therefore the employee was awarded compensation. Don’t let this happen to you – a simple call or email to our team can save you costs that don’t need to be incurred.

Poor Performance

All workers should be given the chance to improve before dismissal. If it comes to be that this opportunity was not offered to the dismissed employee, it can serve as grounds for an unfair dismissal case.

Here are a few circumstances that are covered by unfair dismissal laws:

  • The proper training was not provided for the position.
  • The poor performance was out of the employee’s hands.
  • The worker has a good explanation for not performing according to expectations.
  • There was no warning that performance needed to improve.
  • It was not explained that performance was lackluster.

This is just the start, there are so many cases out there where the proper procedures were not followed. This is not just bad for employees, as if it is proven that the employee termination was unfair, it does not reflect well on the company.

Check out Fresh HR Insights for HR support services and consultancies that you might not even realise you need.

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