Fair, just and reasonable dismissals – a checklist for employers

Recent decisions handed down by the Fair Work Commission (the Commission) where dismissals related to an employee’s conduct have highlighted how deficiencies in an employer’s termination process can render a dismissal ‘unfair’ even where there may have been valid grounds for the dismissal.

In this article, we provide a summary of what an employer should determine when considering dismissal, including how the Commission determines harsh, unjust or unreasonable dismissals, and provide a checklist for dismissing an employee.

When considering terminating or dismissing an employee, an employer should first determine whether:

1. the dismissal is a case of genuine redundancy
2. the employee is protected from unfair dismissal
3. the dismissal is consistent with the Small Business Fair Dismissal Code[1], and
4. the dismissal is harsh, unjust or unreasonable.

Harsh, unjust or unreasonable dismissals

To determine whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account:

1. Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
2. Whether the person was notified of that reason; and
3. Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
4. Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
5. If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
6. The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
7. The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
8. Any other matters that the FWC consider relevant.

Protections

An employee may be protected at the time of being dismissed if:

1. the employee has completed at least the minimum period of employment with the employer; and
2. one or more of the following apply:
   1. a modern award covers the person
   2. an enterprise agreement applies to the person in relation to the employment, or
   3. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Checklist for Employers

1. Is the dismissal a case of genuine redundancy? Yes / No
2. Does the Small Business Fair Dismissal Code apply? Yes / No
3. Is the employee protected from unfair dismissal? Yes / No
4. If the dismissal is for misconduct, what evidence is needed to demonstrate to the Commission that the conduct took place? Yes / No
5. Is there a valid reason for the dismissal? Yes / No
6. Has the person been notified of the reason and given an opportunity to respond? Yes / No
7. Has the person been offered to have a support person present in discussions relating to dismissal? Yes / No
8. Has the person been warned of unsatisfactory performance? Yes / No
9. Does the size of the employer’s enterprise impact procedures or are there dedicated HR management specialists? Yes / No

Summary

A seemingly small oversight can have significant impacts on the outcome of whether a dismissal is unfair, unjust or harsh. Contact us for advice and assistance in relation to any complaint or misconduct, including conducting investigations, as well as advising on termination process and unfair dismissal claims. By contacting us at the earliest opportunity and before any decisions are made, we can help you protect your interests.

We can also review policies to ensure best practice and deliver training to staff, to ensure your business is protected.

[1] A small business employer at a particular time is defined as an employer employing fewer than 15 employees at that time.