As the number of unfair dismissal claims against employers (including NECA members) continues to grow, it is important that members have a thorough understanding of the legislative requirements relating to unfair dismissal, together with risk minimisation strategies are aimed to avoid the potential for litigation.

The laws covering unfair dismissal have become more complex over recent years. As a result, employers need to be more knowledgeable and sophisticated in the management of human resource issues that are likely to arise in the workplace, particularly in the areas of recruitment, induction, training, performance, counseling and termination of employment.

Unfair Dismissal - Fair Work Act 2009

The Fair Work Act 2009 establishes the law covering unfair dismissal throughout Australia.  An unfair dismissal will occur in circumstances where Fair Work Australia regards the action taken by an employer to have been either harsh, unjust or unreasonable. 

Prior to proceeding with termination, an employer should always ensure:

• There is a valid reason and supporting evidence for proceeding with the dismissal;
• That procedural fairness and natural justice has been provided;
• That notice of termination or pay in lieu of notice has been provided.

For more information, click here

Qualifying periods of and exemptions

The Fair Work Act 2009 sets out mandatory qualifying period requirements prior to an employee being eligible to make a claim for unfair dismissal.  The qualifying period centres on the employee’s length of service with the employer, as well as the number of employees that work for the employer at the time of dismissal. 

For more information, click here

Termination of Employment - Valid Reason and Procedural Fairness

Employers have the right to terminate any employment relationship on the proviso there is a valid reason for doing so and the employee has been treated fairly and equitably throughout the investigation and termination process.

For more information, click here

Counselling Procedures

Given the complexity and ever changing nature of the unfair dismissal laws it is important for employers to properly manage grievances that may arise in the workplace, and in doing so follow contemporary counseling practices and procedures, including the retention of detailed, written records. 

For more information, click here

Small Business Fair Dismissal Code

The Small Business Dismissal Code describes the steps for a small business employer to follow when dismissing an employee. If the employee's dismissal is consistent with the Small Business Fair Dismissal Code, then the dismissal will be considered fair.

If a small business employer has not conformed to the Small Business Fair Dismissal Code, the unfair dismissal claim will be treated as any other unfair dismissal claim and may be found to be fair or unfair, depending in the circumstance.

To access the small business fair dismissal code and small business fair dismissal code employee checklist, click here

Remedies for Unfair Dismissal

If an employer was found to contravene the unfair dismissal laws there are a number of remedies that could be imposed on an employer as consequence.

For more information, click here

Back