Unfair Dismissals

When terminating an employee’s employment, the main concern for any employer is whether the decision could result in an unfair dismissal claim and how that risk can be minimised.

In an unfair dismissal application, the Fair Work Commission considers whether the dismissal was “harsh, unjust or unreasonable.”

In assessing this, the Commission will generally examine whether:

• there was a valid reason for dismissal;

• the employee was informed of that reason;

• the employee was given an opportunity to respond;

• the employee was not provided with the opportunity to have a support person present, or was unreasonably refused permission to have one; and

• in cases involving performance, the employee had been warned about unsatisfactory performance.

Employers often lose unfair dismissal matters not because there was no valid reason for termination, but because they failed to follow proper process. Even where conduct or performance clearly justifies dismissal, a failure to observe procedural fairness can undermine the decision.

In Peter Jones v Exclusive Contracting (WA) Pty Ltd, the Commission accepted that there was a valid reason for dismissal. The employee had made inappropriate and racist comments about Chinese people during a toolbox meeting attended by more than 20 staff, including Chinese employees. However, the employer did not clearly put the allegations to the employee nor provide an opportunity to respond before termination. As a result, the employer failed to meet key procedural requirements.

This case reinforces the importance of procedural fairness.

If you are considering terminating an employee’s employment, it is prudent to seek advice beforehand. Proper process not only reduces the risk of a claim but strengthens your ability to defend one. Andrew can provide guidance and, where appropriate, attend on-site to assist with disciplinary meetings.