Unfair Dismissal Claims: What You Need To Know | Fresh HR

Fairness’ can be quite a relative term, depending on personal perspective. Still, in terms of a business and employment scenario, certain circumstances fall within or outside of those boundaries. Whether you keep your company safely within reasonable levels depends on your overall approach to your employees. Unfortunately, however, sometimes it’s just not a good fit between the two of you, and you end up having to deal with unfair dismissal claims after letting go of an employee.

There are numerous reasons to terminate an employment agreement from outright and explicit defiance of company rules to clashes between employees that cannot be resolved due to irreconcilable differences. But, as is the case with many interactions, people can have a knee-jerk reaction out of anger, and in this case, it might well come back to bite you if you’re the one firing a staff member in a moment you feel overwhelmed.

If you do find yourself facing unfair dismissal claims, the best course of action starts with being thoroughly prepared.

Respect The Process

Over the years, a reasonably tight-knit structure has been developed by the commission to deal with unfair dismissal cases. This is, in part, due to employees familiarising themselves with the process and manipulating the matter in their favour.

Employers must present sufficient records of the employee failing to positively respond to warnings or performance reviews and specify as clearly as possible what led to their dismissal. Feeling justified as an authority is not going to suffice as a reasonable warrant.

Remain Consistent In How You Treat Staff

When your business is brought under investigation, there will be reviews done of the way you have treated other staff members in the past. This includes how severely they were reprimanded, which process of warning and reprimand were followed, and whether you as an employer have been inconsistent in the treatment of employees.

If it is found that your process has been erratic, there could be strong grounds for a claim that they did not know where the boundaries were drawn, or that you were harsher on them than others.

Make Your Policies Watertight

In addition to fair and consistent treatment of your employees, be sure to set out unambiguous and specific business policies as well. This includes rules for requesting leave notice as well as possible exceptions to this rule, should your employee face an emergency or have a valid reason to request urgent leave.

For those instances where a point of consideration is not clearly stated in policy clauses, introduce an open-door policy of sorts, where an employee can raise the matter with their superiors to reach a recorded decision and course of action. Should they not respect this policy, it can then be held against them if they claim unfair dismissal.

For more information and professional, guided assistance, contact us. Discover how we can help you create a better, more solid human resource policy for your business.

What will the commission look for when considering an unfair dismissal claim? 

It may be that the dismissal is:

  • harsh but not unjust or unreasonable
  • unjust but not harsh or unreasonable, or
  • unreasonable but not harsh or unjust.

The concepts of harsh, unjust or unreasonable may overlap.

A dismissal may be:

  • unjust because the employee was not guilty of the alleged misconduct
  • unreasonable because the evidence or material before the employer did not support the conclusion
  • harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
  • harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).

In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

  • whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
  • whether the person was notified of that reason
  • whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
  • any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
  • if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
  • the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
  • the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
  • any other matters that the Commission considers relevant.