Unfair dismissal and procedural fairness

If you are considering dismissing an employee for poor performance or misconduct, care must be exercised in order to ensure that it is not harsh, unjust or unreasonable, to avoid being exposed to an unfair dismissal claim. In these events, you should first ask yourself the following 3 questions:

1.  Is there a Valid Reason for the dismissal?

Consider the reason you are dismissing the employee. Can you prove the facts and circumstances surrounding the reason? Is the reason sound and is it also lawful?

The existence of a valid reason for termination is a critical consideration in establishing the fairness of the termination. The absence of a valid reason will almost certainly render the termination unfair. 

If a valid reason for dismissal has been established, the test is to then determine if procedural fairness was applied before the dismissal.

2.  Have you afforded the employee Procedural Fairness?

To comply with the requirement for Procedural Fairness, the employee must firstly be made aware of the allegations concerning their conduct, or given evidence that you consider justifies their dismissal, to enable them to respond. A copy of a written warning is the best way to demonstrate that this procedure has been followed, and it is recommended that this document is signed by the employee as an acknowledgment of receipt. Any warning you give should expressly state that continued underperformance could lead to the termination of their employment.

Secondly, the employee must be given a fair and reasonable opportunity to defend these allegations. If the reason for termination relates to their performance, you must also give them a reasonable opportunity to improve their performance (including offering assistance and training) in order to make sure you afford them procedural fairness.

3.  Is dismissal a fair and proportionate response?

After considering the employee's response, you should also consider if the punishment of dismissal fits the employee's "crime"? Or does the continued underperformance or misconduct warrant a further warning or counselling instead? You should also take into consideration circumstances such as the employee's length of service, mitigating factors such as illness/family difficulties, their age and the seriousness of the offence. 

Once you've asked and answered these 3 questions, you will significantly increase your prospects of defending an unfair dismissal claim if one arises. Failure of the employer to apply these tests before an employee’s dismissal can result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee or payment of compensation. Contact Annette at End2End Business Solutions on (02) 8977 4002 should you require any assistance when considering dismissing an employess or to simply obtain further information on employee dismissals.