The WR team have seen a rise in unfair dismissal claims against our members in recent times. Increasingly, the fundamental issue in these cases is less about whether there was a valid reason for termination, and more about the process undertaken leading to termination. This aligns with the reporting of decisions from the Fair Work Commission, where many applicants succeed, despite the Commission finding there was a valid reason for termination, because the employer failed to allow procedural fairness.
Natural justice, or procedural fairness, is a fundamental requirement in considering whether a dismissal is unfair. A dismissal is considered unfair if the dismissal was harsh, unjust or unreasonable.
Procedural fairness applies right throughout the disciplinary process, and from the very start. This means that it should be applied in any performance reviews, from the start of any performance management, and from the start of any investigation into misconduct of any nature. It should also be followed regardless of whether there is any possibility at the time that the process may lead to disciplinary action or termination, as the view should be taken that these actions are always a possible outcome when underperformance or misconduct is being considered.
In considering whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission is required by the Fair Work Act 2009 to take into account the following:
- Whether there was a valid reason for the dismissal related to the person’s capacity or conduct;
- Whether the person was notified of that reason;
- Whether the person was given an opportunity to respond;
- Any unreasonable refusal to allow a support person to be present;
- If performance related, whether the person has been warned about unsatisfactory performance;
- How the size of the employer may impact on procedures;
- Whether the absence of HR specialists or expertise would impact the procedures;
- Any other relevant matter.
This means that, when a matter comes before the Commission, they will (and do) work through the above checklist, and any failure to adhere to the checklist is likely to lead to a finding that the dismissal was unfair.
The process of dismissal of an employee can be complicated, and it can be difficult to get everything right all the time. The WR team can assist with advice and templates. We also offer a comprehensive interactive workshop on Performance Management, Misconduct & Discipline, with the next session on 9 September 2020. Please contact the WR team on 8291 2000 or at email@example.com if you require assistance or wish to book for any of these services or training.