Unfair Dismissal

Dismissing an employee is always a difficult decision to make. However, if you do need to let an employee go, then it’s critical to make sure you do so legally. Unfair Dismissal claims against employers are costly and problematic – but you can help avoid them by keeping the following three tips in mind.

What is Unfair Dismissal?
Unfair Dismissal is where an employer fires an employee in a way that is harsh, unjust or unreasonable. The Fair Work Act 2009 (‘the Act’), which governs unfair dismissal, applies to all private sector employers in all States and Territories except Western Australia. Under the Act, the Fair Work Commission may compel an employer to reinstate or compensate any employee who was dismissed unfairly.

In deciding whether a dismissal was unfair, the Fair Work Commission may consider the following factors:

  • Whether there was a valid reason for the employee’s dismissal; and
  • Whether the employer’s conduct meets the guidelines set out by the Act.

However, small businesses with less than 15 employees will have separate guidelines under the Small Business Fair Dismissal Code.

(1) Communicate with your Employee
Clearly communicating with your employee is essential in protecting yourself from unfair dismissal claims. By making it clear what you expect of your employees and how they are performing, you can resolve any performance issues up front and if not, prevent any feelings of hostility or humiliation. An employee might be less likely to bring an unfair dismissal claim if they feel you were open about your expectations. While there is no rule that an employer must give an employee a certain number of written warnings before dismissal, you are legally obliged to give an employee an opportunity to improve their performance or contest any allegation or explain any misconduct.

If you have a formal policy and procedure for dealing with your employees’ performance issues you should ensure that you actually follow them. Failing to follow a policy you have communicated to your staff will increase the likelihood of you being in breach of the employment contract or agreement. For example, the court recently found that Qantas had acted unfairly in dismissing a long-serving customer service agent for changing flight bookings without charging additional fees.

Although it was the airline’s policy to charge customers for changing bookings, other agents had done so previously without receiving warnings or being dismissed. Here, Qantas had failed to follow its disciplinary policy. If you don’t have a formal policy in place you may want to consider putting one in place. A good starting point would be ensuring that you, in writing, provide an under-performing employee with the following:

  • Warning of any meetings about their employment;
  • The opportunity to respond to allegations of their misconduct or performance;
  • The ability to have a support person with them during discussions about their employment; and
  • Notice that failure to improve their conduct will result in dismissal.

Employers are often found liable because they have not clearly informed employees about their potential dismissal.

(2) Record Everything
The best way to ensure you are complying with the Act is to keep records of all your interactions with your employees. Regularly updating your employees’ HR files with records of any performance management or disciplinary actions will help you keep track of how your staff are performing as well as comply with your legal obligations. Records can include sending follow-up emails to meetings to confirm what you and your employee discussed, or taking notes during any meeting concerning an employee’s performance or misconduct. Furthermore, well-kept records will help you defend your actions if you face an unfair dismissal claim by an ex-employee.

(3) Make Sure Your Basis for Dismissal is Lawful
To avoid an unfair dismissal claim, you must ensure that the reason you are terminating an employee is lawful. That is, an employer should only dismiss an employee due to poor performance or misconduct. You cannot dismiss an employee simply because you don’t like the person! If you are dismissing an employee for misconduct, make sure you have investigated the misconduct and given the employee an opportunity to explain the conduct.

Under the Small Business Fair Dismissal Code (Code), if a small businesses employer has complied with the Code’s requirements, an unfair dismissal claim must be rejected. The Code is concise, and requires the following:

  • A dismissal will be fair where the employer has reasonable grounds to believe the employee was guilty of serious misconduct. Examples include theft, fraud, violence or a serious breach of health and safety requirements.
  • For other dismissals, an employer must give the employee a warning based on their performance or conduct, and that they risk dismissal if they don’t improve. They must also receive the opportunity to improve their performance or respond.
  • An employer allows an employee to have a person (other than a lawyer) to assist them in circumstances where dismissal is possible.
  • Provide evidence of compliance with the Code if an employee lodges an unfair dismissal claim.

Key Takeaways
To make sure you are fairly (and lawfully) dismissing an employee, ask yourself the following questions:

  1. Do you have a lawful basis for firing them?
  2. Have you clearly informed them of their poor performance or misconduct and warned them they may be dismissed in writing?
  3. Have you given them the opportunity to respond and rectify the issue?
  4. Do you have a formal policy, and if so have you followed it?
  5. Do you have less than 15 employees? Have you followed the Small Business Fair Dismissal Code?

Workplace Investigation

The term “workplace investigation” can set off alarm bells for anyone in an office, but none more so, perhaps, than HR professionals. HR’s anxieties about the process rang through the audience during a session at the recent Society for Human Resource Management’s Employment Law and Legislative Conference.

“You think you’ll start with one issue and you end up with 20,” one attendee said.

Another noted: “If you’ve been at a company for a while, you have the chronic complainers and people who cry wolf. It can be frustrating.”

“For us, it’s a challenge of keeping the information close to the vest and confidential,” a third said. “Information gets skewed.”

Speaker, Dana Barbato, assured the crowd they’re not alone in their stress, but countered that workplace investigations don’t have to be a source of anxiety — not for HR and not for the parties involved.

“Ninety-eight percent of the time, it’s a good thing. And it’s a good thing because it gives you the opportunity to fix the problem before it festers,” she said. “If one person comes forward, usually you have a group of people experiencing the same thing.”

Moreover, investigations can be a chance to earn employees’ trust and build a stronger culture’. Though HR professionals might vary their approaches, keeping three key ideas in mind can vastly improve investigations and, potentially, prevent the need for them in the future.

#1: Standardize the process — and maybe rename it
It’s a tall order to maintain employees’ confidentiality and be as transparent as legally possible about an investigation — and it’s hard to hear workers out in good faith while scrutinizing claims presented as facts by both sides. However, inking a formal investigation procedure, as an employer might for its onboarding or training procedures, will help guide HR through the most difficult investigations. Knowing exactly what an investigation entails, will also embolden employees to come forward.

“Employees just don’t know,” about the investigation process. “We’re empowering them [to come forward], but ask yourself, do they really know what they’re going to get?”

An inconsistent process makes it harder for HR to do its due diligence and could lead to information slipping through the cracks. Establishing a process and applying it to everything — from harassment claims to reports of theft or discrimination — can keep employers accountable and put employees at ease.
Even the term “investigation” can send employees hiding in their cars instead of seeking help from HR when things go wrong at work.

Maybe consider calling it a “resolution process” to remind employees that their claims will be heard and resolved.

#2: Listen actively, and ask for accuracy
Listening is HR’s strong suit, and it’s integral to the success of any workplace investigation. But to get more from those conversations, HR professionals must also know what to say to employees who come forward and what to do with the details they uncover.

In her talk, Barbato solicited ideas for approaching these tough conversations from her audience of HR professionals. Many said showing kindness is key, either by thanking the employee for coming forward or reminding them that their conversation with HR is a “safe space” to express their concerns.

Note-taking can be another way to ensure accuracy and show employees that HR takes their claims seriously. One audience member suggested repeating portions of their account back to the employee afterwards, then asking: “I want to make sure I understand you correctly, is this what you meant?” With accuracy and transparency in mind, another recommended sending the official notes to the employee electronically to review and add more comments to, if necessary.

#3: For the sake of retention, always resolve it
End the investigation. It sounds simple on paper but taking corrective action and concluding the ordeal is the hardest part.

It’s just as important to end the investigation as it is to start the investigation, otherwise you might as well not do any investigation at all. If it hasn’t been taken care of in a timely fashion, then it tells the employees that it isn’t important.

Letting an investigation linger in limbo damages trust between HR and the employee, and so do cryptic generalizations about the progress of the investigation. HR professionals should provide notice to the involved parties if they do uncover inappropriate behaviour, and they should tell those parties about any future corrective actions they plan to take.

One attendee of Barbato’s talk said she does this in person. “We have close-out meetings to provide more details around what’s happening,” the attendee said, which helps her make sure everyone is fully aware of the final decision and has an opportunity to ask questions.

Why should HR open Pandora’s box?
As unpleasant as workplace investigations can be, they’re still a tool that HR can wield for good. In a time when #MeToo and other worker movements have emboldened employees to speak up when they feel their rights are violated at work, HR must be prepared to listen and act on any injustices it uncovers, she said.

If HR can gain employees’ trust and keep it throughout the process, then a workplace investigation might even echo positively throughout an organization.

Disciplinary Meeting Support

As an employer you will probably need to hold a disciplinary meeting with one of your employees at some point. Often, a support person accompanies an employee to a disciplinary meeting. Knowing the role of a support person in a disciplinary meeting and the law around an employee’s right to a support person will help to protect you from unfair dismissal claims.

The Fair Work Commission’s Approach
When the Fair Work Commission examines an unfair dismissal claim it analyses whether the dismissal was “harsh, unjust, or unreasonable”. To ensure your compliance with the Fair Work Act 2009 you cannot deny someone a support person at a meeting to discuss a dismissal, if the employee requests one.

If you deny an employee a support person, the Commission may find that you did not give the employee “procedural fairness” and, therefore, the dismissal was unfair. Although you do not have to offer the employee a support person under the Fair Work Act (you do not have to offer, but you cannot deny a request), it can be a good idea to tell the employee they can bring a support person with them. This way, it is extremely clear you are offering the employee procedural fairness.

A Support Person in a Disciplinary Meeting
You only have to allow a support person in a meeting if it is a disciplinary meeting. Disciplinary meetings are serious meetings between an employee and one or more of their managers. These meetings usually relate to the employee’s potential dismissal.  A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed.

A support person in a disciplinary meeting can provide moral support to the employee. They might be a friend, mentor or union representative. During the meeting, they will often sit next to the employee and be available to chat about the meeting afterwards with the employee. A support person should not attend routine meetings, such as annual appraisals.

How to Prepare for a Disciplinary Meeting with an Employee
Before the meeting explain in writing that the employee may have a support person present and that it is up to the employee to choose this person. You should also mention that the role of the support person is purely to provide moral and emotional support, rather than answer questions on behalf of the employee.

Refusing a Support Person

You should only refuse an employee’s choice of support person if there is a potential conflict of interest. For example, the employee should not ask another employee also involved in the matter to be their support person. An external person, like a close friend, is more appropriate.

However, if you do refuse the initial choice of support person, ensure that you document your reasons in writing. You should also give the employee time to select a more appropriate choice. You should not choose a support person for the employee or replace their initial choice with your own.

Some employees will elect not to have a support person. When this happens it is important to have this decision recorded in writing. In this case the meeting can go ahead without a support person. However, the employee is still allowed to change their mind and invite a support person to the meeting.

A Support Person’s Behaviour in the Meeting
The person leading the meeting should clarify at the outset that the support person should not speak on behalf of the employee. They can speak with the employee. If the support person starts answering questions, you should remind them that they cannot do this. You should record any interruptions in the minutes.

Excessive interruptions may be grounds to pause the meeting. If the support person continues with this behaviour you can ask them to leave. However, you must always give the employee the chance to have a support person of their choosing present. Therefore, you should only eject the support person in extreme circumstances. You can offer the employee the opportunity to find an alternative person, or continue with the meeting, if appropriate.

If you deny an employee a support person in a disciplinary meeting, and terminate their employment, they may commence an unfair dismissal claim against you. This is just one of thezfsctord relevant to sn unfist dismissal claim. Therefore, you must allow a support person in any meetings relating to the employee’s dismissal.

Key Takeaways
An employee has the right to request a support person for disciplinary meetings. You should extend this opportunity to them in writing. You should give the employee appropriate time to choose their support person. In the meeting, the support person is only there to provide moral support. However, they play an important role in ensuring that the employee is not dismissed unfairly.

For further advice & support contact EAP Assist