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How To Avoid An Unfair Dismissal Claim In The Fair Work Commission

How to avoid an unfair dismissal claim in the Fair Work Commission

Before you find yourself defending a claim of unfair dismissal at a hearing before a member of the Fair Work Commission, there are some things you should think about, according to Employer Advisors.

Unfair dismissal means dismissing an employee in a harsh, unjust or unreasonable manner, and Miles Heffernan from Employer Advisors said too many bosses forget this basic definition before sacking a worker.

More than half of unfair dismissal claims that are decided at arbitration or at a hearing before a Commission member are ruled unfair, meaning employers lose the majority of cases they are defending, and are often forced to pay the employee compensation, or in some cases, give them their job back.

Mr Heffernan said this is because businesses mismanage the way they handle disciplinary and termination processes without first getting expert advice.

“We see it time and time again, where a company sacks an employee, only to be later found that they didn’t follow correct procedures or protocols, and acted in a harsh, unjust or unreasonable manner,” he said.

The majority of unfair dismissal claims that are decided by a Commission member are ruled to be unfair.

According to the Fair Work Commission, in considering an application for unfair dismissal, a member will take the following into account:

  • Did you have a valid reason for the dismissal related to the employee’s capacity or conduct
  • Did you notify the employee of that reason
  • Did you give an opportunity for the employee to respond to that reason
  • Did you refuse the employee to have a support person present at any discussions relating to the dismissal
  • If the dismissal is related to unsatisfactory performance, did you warn the employee about that unsatisfactory performance before they were dismissed
  • Did you have dedicated human resources management specialists and if not, the degree to which correct procedures for the dismissal were followed or not followed

If it is found that the dismissal was unfair, by being harsh, unjust or unreasonable, the Commission member may make a number of different orders, which might include:

  • Reinstatement – giving your employee their job back, including any lost pay
  • Compensation for lost wages (must not be more than 26 weeks’ pay and doesn’t include compensation for shock, distress or humiliation).
  • A non-financial remedy, like ordering a Statement of Service to be provided to the employee

Mr Heffernan said it’s important for employers to understand how the Commission makes its rulings, but even more important, they need to seek urgent expert advice before managing an employee or a difficult workplace matter.

“If employers do the right thing, and follow proper processes and procedures, and can prove the dismissal was fair, just and reasonable, then they should always be able to avoid ending up before a member of the Fair Work Commission,” he said.

“But always get professional advice before you take action so you don’t find yourself in an expensive and time consuming mess.”

For more information about unfair dismissal, please click here.

If you are having trouble with managing a difficult employee, or are facing a claim of unfair dismissal, we can help.  Please call Employer Advisors on 1300 853 837 for expert and confidential advice.

To keep up to date with the latest industrial relations news and employer advice, please follow our main Industrial Relations Claims page on Facebook.

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