VTA 2015: Avoiding unfair dismissal claims

Industrial advisor Paul Ryan spells out how to let someone go with the law on your side

VTA 2015:  Avoiding unfair dismissal claims
Paul Ryan


Documentation and consultation are the keys to firing an employee fairly and with confidence, the Victorian Transport Association’s industrial advisor Paul Ryan says.

His industrial relations update to the VTA’s conference on Tuesday outlined the ways employers can protect themselves from potential unfair dismissal claims in the Fair Work Commission (FWC).

In particular, he says it is important to show a pattern of unreasonable work performance or behaviour.

"If performance was unsatisfactory, was a warning given?" he asks

Set standards of performance and behaviour – standards that are written and communicated to staff before any breach – will also add to an employer’s standing in any FWC dispute.

Ensure the standards are ascertainable, and then communicate them via a Code of Conduct or written policies," Ryan advises.

"Enforce the standards in a reasonable manner."

Employers also need to take care they uncover all of the facts when dealing with a fireable incident. Ryan says they need to investigate thoroughly, talking with all possible witnesses. The employee should also have a chance to respond to any allegations.

Ryan notes that formal warnings are not vital for a legal termination, but they do provide valuable evidence of repeated behaviour and employer efforts to inspire change.

He stresses the importance of making any termination less contestable, by advising the employee in writing.

Summary, or instant, dismissals can sometimes invite a dispute. "Be very careful if you wish to summarily dismiss as the onus is shifted onto the employer to prove the termination fair," Ryan says.

The FWC says instant dismissals are valid in cases where there is serious or imminent threat to the health or safety of a person; or the ongoing viability of the business. Criminal activity – fraud, harassment, assault, and theft can also be grounds for an on-the-spot termination.

Successful claims of unfair dismissal can result in reinstatement of the employee, up to $66,500 payment towards loss of earnings, or a combination.

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