May 19, 2024 • 29 mins
In this episode, we delve into the complex world of unfair dismissal, a critical issue that we hear many business owners and managers think about, even worry about.
We explains what constitutes unfair dismissal, the legal framework surrounding it, and the rights of both employees and employers. Importantly we tell you just what we do with our clients to avoid unfair dismissal claims.
Tune in to learn about the steps to take if you find yourself in this situation and what help to seek.
You can find the show notes for this episode here
Would you like to submit a question to the show? Let us know on our website or via LinkedIn.
Brought to you by Aster HR, the Work Wonders Podcast is hosted by Angela Gauci & Susan Rochester and is recorded at Launch Pad at Western Sydney University.
All information or advice included in this podcast is general, has been developed as a starting point for your business, and should be tailored to your specific requirements. It should not be considered legal advice. We have made every attempt to ensure the accuracy and currency of this information at the time of recording. However, references to things like employment laws are subject to change. For specific advice relating to your business, please get in touch with us.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:06):
Welcome to the Work Wonders podcast brought to you
by Asta HR, where we simplifythe human side of business.
I'm Angela.
Speaker 2 (00:13):
And I'm Susan.
Let's dive into today's episodeand find out what you've been
wondering about.
In today's episode, we'retaking a closer look at unfair
dismissal.
What is it, what are the risksand how do you avoid it?
So let's dive in.
This is the Work WondersPodcast.
Hello Angela, Hi Susan.
(00:38):
Well, today, unfair dismissal.
Speaker 1 (00:42):
It is something that we hear somewhat often that
people are worried about.
Speaker 2 (00:46):
Yeah, exactly.
Well, let's start off with adefinition.
Speaker 1 (00:49):
Okay, good place to start, that's right usually is
so.
Speaker 2 (00:53):
according to the law, an unfair dismissal is when an
employee is dismissed from theirjob in a harsh, unjust or
unreasonable manner.
Three aspects to that.
Speaker 1 (01:05):
Right.
What we're getting down to isthe employee suing you or taking
action because they're beingfired.
Yeah, that's right.
Speaker 2 (01:12):
And that's really what people are worried about,
employers are worried about.
That's what we hear quite often, actually.
So what are the risks?
Speaker 1 (01:22):
for an employer.
Well, I think the big one is afinancial and legal risk.
Oh yeah, to respond to thatmatter could require legal
assistance, which in itself hasa cost, and depending on the
severity and the outcome of thathearing, of the proceedings,
you could be forced to pay afinancial amount to compensate
(01:44):
someone if it's found that thatwas unjust or something, for
example.
Speaker 2 (01:47):
Yeah, that's right.
So that's a pretty big one.
And so then there's that costof the compensation, but there's
also, if you end up having todefend it in legal proceedings,
more costs there, and that'sgoing to be regardless of the
outcome.
So if you end up in court oryou end up before the commission
, it's going to cost you money.
Yes, whether you win or youdon't.
Speaker 1 (02:09):
Exactly, so best avoided.
There is a couple of thingsthat can happen, isn't there?
It's not always.
We'll just give you money tomake you say sorry, it's not
like that.
It could be reinstatement.
It could be compensation.
I think it's important to notecompensation is equivalent, or
it's maxed out to the equivalentof six months' pay.
Yeah, so legal proceedings.
Speaker 2 (02:30):
It's not just the cost of the legal representation
, though, is it so?
It's preparing the documentsand then the potential of having
to pay some sort of settlementor compensation, as we're
talking about yeah.
So then there's thereinstatement of an employee.
As you mentioned, Fair Work canactually, or the commission can
, order you to reinstate anemployee to their former
(02:52):
position.
I think that's usually based onwhether they want that or not.
Speaker 1 (02:56):
Yeah, I think you're right.
Is that right?
Let's say the argument was Iwas unfairly dismissed because
my job's still there, justsomeone else has got it, or
something like that.
The decision may be well, youshould actually have to put the
person back in that job becauseit was theirs.
So yeah, that might apply insome cases.
Speaker 2 (03:14):
So that could be very uncomfortable for a couple of
reasons.
One you might have already putsomeone else in their job, so
what are you going to do?
Pay two wages for the same roleor the fact that someone has
made an unfair dismissal claimagainst you in the first place?
It's going to be prettydamaging to the working
(03:35):
relationship.
Speaker 1 (03:36):
Yeah, that's safe to say.
That would be really awkward.
Well, on that topic of morale,the unfair dismissal claim can
have a further reaching effectthan just between the person
that's claiming it theex-employee, and the employer.
It can actually go furtherreaching to the other rest of
the team, can't it?
Speaker 2 (03:52):
Yeah, I wonder how often that does have a negative
impact.
Wouldn't be interesting to know.
Speaker 1 (04:00):
Well you know it's not uncommon for staff in a team
to talk about.
I got this bonus, this one.
You know whing not uncommon forstaff in a team to talk about.
I've got this bonus, this one,you know, whinged at me because
I forgot to do this report thisweek and that sort of thing,
Just like that.
You know, people can talk andtalk about the fact that there's
a claim out there and wonderwhat it's about.
Speaker 2 (04:16):
Yeah, and so you could be looking at effects like
reduced productivity, even ifit's just from people gossiping,
increased absenteeism or evenother people going oh, this
isn't really where I want towork if they perceive that the
person has been treated unfairly.
Speaker 1 (04:36):
Well, look, we'd hope that none of our listeners
would do this.
But let's just imagine if anemployer happened to have an
unfair dismissal claim, and thenanother one, and another one.
That's going to look really bad.
That might be a situation wherethe rest of the team go.
I don't want to work here ifeverybody's being fired and
going for this sort of thing,yeah, good stuff to make them
(04:56):
question, and I would just liketo make a point here the
perception is the important part.
Speaker 2 (05:02):
So there may not even be any unfair dismissal claims,
but if there's the perceptionthat someone who's left has been
treated poorly, that's going tohave an effect on morale.
Speaker 1 (05:15):
Yeah, absolutely, because they'll think they're
next or could be next.
Speaker 2 (05:19):
And this is where it's important to be very
transparent with staff aboutwhat's going on.
You know, being open aboutsomeone leaving as in don't just
let them disappear and thenleave everyone wondering yeah,
but on the other hand, you knowyou don't have to go into the
grim details.
Speaker 1 (05:40):
No, and depending on who you're speaking to in your
team, you know managers mightneed to know a little more than
you know.
Co-workers of the person that'sleft, for example.
But it just makes me think aboutthe reasons why an employee or
ex-employee may claim unfairdismissal is usually when things
get a bit yucky.
You know, it might've been,maybe there was serious
(06:02):
misconduct, or you know theywere terminated rather quickly,
or it was redundancy and it wasunexpected from their side and
all of a sudden they've got nojob.
It's usually quite emotional,isn't it that time for them?
Speaker 2 (06:14):
Oh yeah, definitely.
So one of the other risks andthis sort of carries on from
what we were saying about whatstaff the remaining staff might
think about there being anunfair dismissal claim is your
reputation or damage, or youknow just as look people talk,
as we said, so it's going to beknown somewhere.
(06:36):
If it is a dramatic case or youknow a high-profile
organisational industry, youmight even find that there's
media attention on it.
Yeah, which you don't reallywant.
Nobody would want that, but evenso, in a small community where
a lot of our clients are based,like, your employees are part of
(06:59):
the community right.
So the word gets out about anorganisation.
Speaker 1 (07:04):
And I'm not sure at what point, but it would become
public knowledge through.
If you're one of those peoplethat likes to Google case law,
you could eventually find itthere too.
Yeah, exactly.
Speaker 2 (07:14):
I wonder how many candidates look up their company
?
I wonder.
Probably not many.
Only sneaky people like us thatwould think of that.
Another thing about unfairdismissal is that it's a big
distraction from the day-to-daywork if you're the manager who's
dealing with it?
Speaker 1 (07:31):
That's a good point.
Yes, it would be taxing both ontime and your stress about it,
and all of that taking theresources away from your
day-to-day job just to deal withthat.
Speaker 2 (07:42):
Having to get together whatever documentation
you need.
Yeah, it could be a lot of timethat you don't really have.
Who's got time for more?
Speaker 1 (07:51):
work.
Yeah, yeah, you're right,because there is a fair bit to
the process.
You know you'll respond andthen you'll be asked to
participate in things, and it'sa to and fro a lot.
So it's not just kind of a caseof filling out a form and not
much else.
There's a lot to it.
So it's yeah, it's an ongoingsort of thing too.
Speaker 2 (08:15):
Yeah, yeah.
And one thing most of usprobably wouldn't think about is
that if you have an employee orsorry, ex-employee who's
willing to put in a claim forunfair dismissal, there's also
the potential or could be thepotential there for other claims
.
So it might be to do withadverse action or discrimination
.
So from that same person, thatsame situation, you could find
yourself exposed in other areasas well.
Speaker 1 (08:35):
So this is where we get specific, because there is
unfair dismissal, which has avery definitive list of things
that make a person eligible todo that.
They have to have obviouslylost their job, and it needs to
be within a certain period afterthey lost their job.
And, as we said before, it'scapped at certain things.
Adverse action is a little bitmore flexible in its definition,
in that you could have beentreated badly or lost your job
(08:59):
because of something.
There's a lot more that can bebrought into that, and then
there's other things as well.
If you went and spoke to alawyer, there's probably five
more different ways that youcould sue an ex-employer.
So, yeah, if the unfairdismissal might not be something
that they because it's fairlyeasy to start an unfair
dismissal claim for anindividual but if they don't
(09:20):
have the successful ending thatthey were hoping for, you're
right they may then go oh well,let's try something else.
The other thing that comes tomind, susan, is that if you have
an unfair dismissal claim, nomatter the outcome, really it
could bring your business insort of under the spotlight, so
there could be potential forfurther scrutiny, whether it be
(09:42):
you know checking that youcomply in other areas or you
know being very sensitive tofurther unfair dismissal claims
in the future.
Speaker 2 (09:49):
Yeah, so that would require you to make sure that
all your compliance is up todate, I suppose really including
that you're paying people theright pay rates because we know
that's an area of focus at themoment.
Yeah, yeah, gosh, there's a lot, isn't there?
Yeah?
Speaker 1 (10:06):
And I guess look, I don't like to go there, but if
it was a successful successfulis not the right word, but if
the claim was upheld and therewas something that the employer
needed to do differently,there'd be a certain amount of
work.
Then, after the fact, to go,okay, well, we need to change
our practices in performancemanagement or communication or
whatever it might be, to preventit from happening again.
Speaker 2 (10:28):
Yeah, changing policies, so there's actually a
lot.
Speaker 1 (10:33):
Yeah, we've painted a pretty negative sort of picture
.
Speaker 2 (10:37):
I shouldn't be laughing because you know,
coming from an HR perspective,when people say I'm so worried
about unfair dismissal, I tendto brush it off a bit, thinking
well, if you're doing the rightthing, you probably won't need
to worry about it.
But when you look at the risksthat are there for business, I
can see why people are worriedabout it.
Speaker 1 (10:57):
Yeah, and it's scary, I can imagine, because you're
having to answer for somethingthat you've done in the best
interest of your business mostly, and having fair work coming
and knock on your door is notsomething that happens every day
.
So I can understand thatapprehension.
But hang with us, because we dohave a lot of tricks up our
sleeve, because we know, susan,don't we?
(11:17):
The things that we would workwith our clients on to prevent a
lot of all this stuff, keywordbeing prevent.
And so, yes, look, there are alot of things on the negative
side that might be in your mind,you might have considered
before, but there's also a lotthat you can do to prevent it.
Speaker 2 (11:36):
How did you get into your business?
Sometimes it's because you'regreat at a particular thing or
you've got a passion forsomething and you know that you
can do it a little better thanwhat other people are already
doing.
Now that you're in business,you've discovered there's a lot
more to it than just having theright skills.
Especially when you've hired ateam, you might have learnt the
(11:56):
financial skills that you needbecause you had to, basically,
but where do you go to developthe HR and the leadership skills
that you need?
If you're feeling overwhelmedin managing people and all the
other things that come withrunning a business, we can help
you.
We'll guide you through theskills you need to feel more
confident in leadership.
Go and check out the coachingpage on our website or schedule
(12:19):
a call with us at astorhrcomau.
Now it's back to the episode.
Speaker 1 (12:28):
Okay, susan.
So we did talk about the risksand the fears, I guess, and
associations with unfairdismissal, and they're all valid
.
Now let's get onto the goodstuff.
Let's paint a better picture,and can we start with thinking
about?
Let's define who is eligible toapply for an unfair dismissal
claim.
Speaker 2 (12:47):
So obviously they're an employee.
Speaker 1 (12:48):
Mm-hmm.
They have limitations that theyneed to apply within 21 days
after they've finished up, so iftheir last day was yesterday,
it's 21 days from there.
Speaker 2 (12:59):
Yeah, and also they need to have been employed for a
certain minimum period.
Ah, you're right.
So for small businesses thatminimum period is 12 months.
A small business is fewer than15 employees, so 1 to 14
employees minimum period 12months.
All other businesses it's sixmonths.
Speaker 1 (13:20):
Okay.
So if someone had only beenwith you four months, they
couldn't go for this Right.
Speaker 2 (13:25):
So there is a thing called the Small Business Fair
Dismissal Code and we willprovide a link to this.
But if again, as I said, 1 to14 employees who qualify as a
small business, if you can showthat you have followed this code
at the time the person wasdismissed, then they can't claim
(13:48):
unfair dismissal.
Speaker 1 (13:49):
Right, and it's a really handy guide, very
practical.
It has a lot of things in therethat you can just implement, to
which some of them willprobably be going through, to
reduce the risk of that beingdone.
Speaker 2 (14:00):
Yeah, it's a great document, and if you haven't
looked at it, I recommend it.
So now we've cleared who canand when.
So, as for our list, then, whatwe would do, well, the first
one is understanding thelegislation, so knowing what the
conditions are.
So we finally covered that justthen, didn't we?
Speaker 1 (14:20):
We did yeah.
But I guess, holisticallythinking about employing people,
you want to know what the fairwork is, what it includes, the
awards that you're paying peopleunder all those pieces of the
puzzle.
You've got differentlegislation about super, about
long service leave, aboutworkers' comp.
If you're not sure about thoseand that's quite okay, because
(14:40):
not everybody loves to read lawget the help of somebody that
knows about that.
Speaker 2 (14:47):
By which you mean us right.
Speaker 1 (14:48):
Oh yeah.
Speaker 2 (14:51):
Yeah, so you know the law.
Well, you've got advice fromsomebody who knows law and knows
what's what.
You also need to have fairreasons for the dismissal, so
let's have a look at what avalid reason might be.
Sure, so it could be poorperformance, misconduct or
redundancy.
So your reason doesn't justhave to be a reason that you
(15:15):
think is a good reason.
Yeah, it does have to be soundand defensible and
well-documented.
Speaker 1 (15:23):
Yeah, absolutely, and there's definitely room to have
determinate employment if youneed to.
Those things are pretty clear.
Yeah, Determination has tohappen because you know
misconduct is reserved forthings that are of a serious
enough nature and there we'retalking instant dismissal, yeah.
Yeah, and when it comes down toit, redundancy certainly is,
but poor performance as well.
When it comes down to it is abusiness decision because you're
(15:45):
needing A to be done and it'snot being done, or redundancy,
you no longer need A to be done.
Yeah, I.
Speaker 2 (15:54):
you no longer need A to be done.
I was going to say we could doa whole podcast on performance
management and I think wealready have, but I think this
is probably an area where a lotof business owners and managers
get tied up.
They really don't want to havethose performance conversations.
Oh, they're hard, yeah, whenthey do, it's put off and put
off, and then it's not reallydone properly.
And then it gets to the pointwhere it's, you know it gets
(16:16):
emotional.
Speaker 1 (16:17):
Yeah, absolutely Dealing with humans.
Speaker 2 (16:19):
Yeah, exactly, and this could be probably a very
common scenario for what ends upas an unfair dismissal case,
because people are just notclear on what you were really
saying and why they were let go.
Speaker 1 (16:33):
So what you could do, saying and why they were let go
.
So what you could do instead isagain having a very clear
procedure of how you might gothrough that and again, if
you're not sure, get the help ofsomebody that can help you and
is an expert in that area,someone that can even walk you
through that process.
I know we've done that recentlyfor a couple of clients.
So, yeah, it's okay if it's notsomething that you're an expert
in.
Not everyone can be an expertin everything.
Speaker 2 (16:54):
No, but we're here to guide you through that, ideally
, we'll have policies thatalready guide you through that,
policies and procedures thatcover what happens, what's your
disciplinary process and whathappens when you're approaching
termination.
And as well as having thosepolicies, you need to know that
they're compliant with theAustralian law.
(17:15):
Good point.
Speaker 1 (17:20):
Susan, a term that we are familiar with and we
introduce our clients to a lotis procedural fairness.
Speaker 2 (17:25):
So perhaps we can explain what we mean by that
it's a lot of things.
Speaker 1 (17:30):
The law, especially employment law, loves that word
fair and reasonable you know,that sort of thing, but doesn't
really define it.
But anyhow, procedural fairnessis a lot of things.
It's an umbrella statement thatreally talks about what you're
doing, that is evidence-based,that you can show that you were
fair, you had a procedure, thatit wasn't biased or
(17:51):
discriminatory in any way, butactually based upon a business
decision.
Speaker 2 (17:56):
And compliant with the law and compliant with the
law.
There's another piece to that,and that's that the person
themselves has an opportunity torespond.
Yes, that's valuable, yeah.
Speaker 1 (18:06):
Yeah, absolutely so.
Some small things, like whenyou're holding a performance
management meeting, you mightoffer the person to have a
support person there.
Speaker 2 (18:15):
You might give them adequate notice of the meeting.
Yeah, Let them know what theissue is that is going to be
discussed.
You might also make sure thatthe meeting is documented, and
once it is documented onceyou've held the meeting, they're
allowed to respond to whateverit is documented.
Speaker 1 (18:32):
Once you've held the meeting, they're allowed to
respond to whatever it isAllowing them to respond and ask
questions definitely important.
Speaker 2 (18:39):
The other important thing is that, although a
support person can we would sayshould be present in the meeting
, they're not there toparticipate in the meeting.
Speaker 1 (18:48):
No, that's interesting, isn't it?
So they're not there to be anadvocate?
No, they're literally there tobe an advocate.
No, they're literally there tojust support them.
Emotional support.
Speaker 2 (18:57):
Yeah, exactly.
Speaker 1 (18:58):
Yeah, so not much else.
They're not really there towell.
In fact, we'd say don't letthem participate in the
conversation, more than to saylet's take a break.
Speaker 2 (19:06):
Yeah, exactly so it's quite reasonable for the
support person to do what youjust said.
So we need a break now and todiscuss outside the room if they
even want to.
But yeah, they're not there totake part in the meeting or to
be the advocate for the personwith the performance issue.
Speaker 1 (19:24):
So you might have gathered from what we're saying
about procedural fairness andholding meetings and documenting
things, that documentation isso important yeah, you're going
through this process and so allstages of it, really so you
might be as formal as to haveminutes of a meeting, but I know
of cases where diary notes havebeen just as important, of when
(19:47):
particular things happen.
Let's say, even in the case ofperformance management, if an
employee was not or didn't dosomething right or something
occurred on a particular day, adiary note of when and where
that happened and what it was isalso a good piece of
documentation.
Speaker 2 (20:04):
Yeah, well, that would be something, then, that I
assume you'd be taking to themeeting where you're discussing
the issue with the said employeeand then warnings would need to
be in writing.
Speaker 1 (20:16):
Yeah, if it gets to it, you're giving them a formal
warning.
Speaker 2 (20:19):
And any other sort of correspondence.
One mistake that I've seenhappen a lot is people have the
performance meeting, or whateverwe want to call it,
disciplinary meeting.
Yeah, and in the manager's mindit's quite clear that they've
warned this person, that this istheir first warning, and blah,
(20:40):
blah, blah.
Speaker 1 (20:40):
Yeah.
Speaker 2 (20:41):
However, at no point has it been mentioned, or even
in the invitation to the meetingor anything like that, has it
been mentioned that the person'semployment is at risk if they
continue with this behaviour orthis poor performance or
whatever.
So until you've done that, youhaven't really warned them at
all.
Speaker 1 (20:59):
Yeah, yeah, you're right.
Look, it's all really awkwardand uncomfortable, isn't it, for
someone that's not experiencedin HR, like us, or comfortable
with it.
It's not easy to have theseconversations, but you're right.
Specificity and saying thoseparticular things, giving the
notice, saying it's in regard toperformance.
(21:20):
If it's a warning letter, likeyou say, it's very valid to say
your employment will be at riskif this does not stop happening
or those sorts of things arehard to say, but they're
absolutely necessary, exactly soif again, if you're not feeling
comfortable, that's whereprobably better to get some
expert advice to to help youthrough that that's true, and
just because you've said that tosomeone doesn't mean that
(21:42):
you're being unfair.
No, no, not at all, because, asyou said, it's a business
decision.
Speaker 2 (21:46):
If the performance isn't happening or there's
behaviour that you don't want tosee repeated, then you're well
within your rights to say ifthis continues, this could
result in you losing your job.
Speaker 1 (21:58):
Yes, yes, absolutely.
And I would say to our clientsif it's a business decision,
it's because you know you need X, y and Z done.
That's not being done.
If you've given them a chanceto improve that, because that's
what you've needed and that's inthe contract and so on, all of
that stuff that we're talkingabout you've been procedurally
fair.
It's okay to make that decision.
Speaker 2 (22:20):
Yes, it's awful.
Speaker 1 (22:21):
Someone's losing their job and it's not great,
but it's a part of a businessand it's part of an avoiding
risk, you know, for yourbusiness and serving your
customers and all of that.
So yeah, it's complicatedbecause we're dealing with
humans, but be assured, ifyou're doing it for the right
reasons, that's okay.
Speaker 2 (22:38):
Yeah, so another way of avoiding an unfair dismissal
claim would be to get legaladvice, especially if it's a
messy sort of situation.
And by messy.
I mean, you know there's somany grey areas in employment
and it's not always exactlyclear cut, and legal advice
(22:59):
might help you to clarify justwhere you are in the dismissal
process and what needs to happento avoid an unfair dismissal
claim.
I'm not saying that you alwaysshould get or need legal advice.
If you follow, for example, thesmall business code that we
talked about, then you may notneed it, but sometimes we can
(23:20):
sense that there's an issuewhere the relationship's already
broken down.
Speaker 1 (23:26):
Yeah.
Speaker 2 (23:28):
So you probably need to tread with care.
Speaker 1 (23:30):
Yes, every situation's different.
Like I said earlier, there's somany pieces of the puzzle when
it comes to legislation, andsometimes they fight against
each other, whether it be adefinition or which one takes
precedent or priority.
There's also case law, which isa lot relied upon, a lot.
Someone like a lawyer would beacross all of that and be able
(23:51):
to support you.
You can go to just a lawyer, orthere are actually people
that's… Industrial relations,yeah.
They specifically assist peoplein industrial relations law, and
so those sort of people wouldbe well familiar with what the
process is in front of thecommission.
Speaker 2 (24:07):
Yeah, so related to that is being careful about all
your communication.
Speaker 1 (24:15):
Ah, there's that word again Communication.
Yeah, I think we're up to 52this time.
I don't know If this is yourfirst episode you're listening
to welcome.
We talk about communication alot, but you're right,
respectful communication isimportant and definitely part of
being procedurally fair.
Speaker 2 (24:35):
And you know making sure that you're communicating
the reasons and things like that.
I mean, it sounds like itshould be obvious, but in the
heat of the moment it doesn'talways happen.
Speaker 1 (24:45):
Well, it's like if you think again about a
performance management example,you know one might think oh, can
I say that you know they had areally crappy attitude towards
our team meeting the other dayor something like that.
Well, sure, but try not to putit into your words.
You know if you're documentingthat or you're even
communicating it to them.
Explain.
(25:09):
The expectation is thateverybody come with a
professional attitude andparticipate in the conversation.
Something like that is a lotmore respectful in communication
than to say listen, yourattitude was crap and we can't
have that right.
Right, so yeah.
Speaker 2 (25:20):
Good point.
I like that, okay.
So anyone who has ever had todismiss someone or let someone
go will realise that there'scertain legal requirements,
quite aside from avoiding unfairdismissal and all the rest of
it.
So they come down to giving thecorrect notice period or
payment in lieu of notice andany severance payments that
(25:45):
might be due to that person, andso you need to be sure that
you're complying with Fair Workand that employee's contract or
the award or whatever instrumentthey come under.
Speaker 1 (25:55):
Yeah, so notice period for those who might not
know applies both ways.
So if a person resigns, theyneed to give you notice, right,
that they're going to be doingthat.
Well, the same applies for you.
If you're the employer going toterminate that employment, you
give them notice as well, and ifyou can't do that, then you pay
them in lieu of that.
Yeah, which is equal paymentfor that notice period or what
(26:16):
it would have been.
Speaker 2 (26:17):
Yeah, exactly, and please note that, as an employer
, you can't claim unfairresignation.
No, sometimes it would be niceto be able to.
And all this comes down to theinteraction between people,
doesn't?
Speaker 1 (26:34):
it yeah.
Speaker 2 (26:35):
And just being careful about what you say and
following correct process andcommunicating, and you might
find that there's some trainingthat's required for your
managers and team leaders, oreven for yourself.
Yeah, really good point, and wecan help you with that as well
Just making sure that when adisciplinary matter happens or
(26:56):
there's termination, that it canbe done effectively but, also
legally.
Speaker 1 (27:01):
Yeah, you know, if you have someone like us or a
lawyer, that sort of thing inyour corner, we can support you
through the process to make surethat you're doing it in a fair
way, so that, yes, it doesn'tfeel comfortable and it's a bit
you're worried after thiswhether they're still going to
try an unfair dismissal claimyou might lose some sleep.
You might.
We might too, but you know,having someone in your corner to
(27:24):
say, look, it's okay becausewe've got this piece of evidence
and we've done this fairly andwe've got this and done that and
the decision you're making isnot discriminatory, it's not
whatever, it's fair All thosethings can hopefully help you
feel a little bit more assuredthat you're okay.
Speaker 2 (27:39):
And I think you'd agree with me, Angela, that
every single case is different.
Oh yes, so you need to getadvice for your specific
circumstances in the situationthat you find yourself in to
avoid unfair dismissal.
Speaker 1 (27:51):
And let's end on a happy note.
There are some unfair dismissalclaims that go against the
claimant.
So the employer is found tohave to do nothing.
Speaker 2 (28:00):
Yeah, exactly.
Speaker 1 (28:01):
Because it was fair and it was compliant.
There's nothing to worry about,so that can happen.
Speaker 2 (28:06):
And I think it's really useful to keep those few
words in mind.
Speaker 1 (28:11):
Those few words being harsh, unjust or unreasonable
yeah, so hopefully that has notbeen too daunting a list.
Hopefully there's somethingwe've left you with there that
gives you some assurance that ifthat's on the horizon for you,
you're well equipped to dealwith that.
Make sure that we put that listin our show notes.
So if you want to refer back tothat, you can and, as we said,
(28:33):
if you want to reach out to us,we'd love to have a chat with
you and see how we can help youavoid or deal with these sort of
matters, and we'll also put alink in the show notes to that
small business dismissal codethat we mentioned.
Thanks for listening to theWork Wonders podcast brought to
(28:56):
you by Asta HR.
Hit the subscribe button now tonever miss an episode, and if
you'd like to continue theconversation with us, you can
find us over at astahrcomau.
See you in the next episode.
Welcome to the Work Wonders podcast brought to you
by Asta HR, where we simplifythe human side of business.
I'm Angela.
Speaker 2 (00:13):
And I'm Susan.
Let's dive into today's episodeand find out what you've been
wondering about.
In today's episode, we'retaking a closer look at unfair
dismissal.
What is it, what are the risksand how do you avoid it?
So let's dive in.
This is the Work WondersPodcast.
Hello Angela, Hi Susan.
(00:38):
Well, today, unfair dismissal.
Speaker 1 (00:42):
It is something that we hear somewhat often that
people are worried about.
Speaker 2 (00:46):
Yeah, exactly.
Well, let's start off with adefinition.
Speaker 1 (00:49):
Okay, good place to start, that's right usually is
so.
Speaker 2 (00:53):
according to the law, an unfair dismissal is when an
employee is dismissed from theirjob in a harsh, unjust or
unreasonable manner.
Three aspects to that.
Speaker 1 (01:05):
Right.
What we're getting down to isthe employee suing you or taking
action because they're beingfired.
Yeah, that's right.
Speaker 2 (01:12):
And that's really what people are worried about,
employers are worried about.
That's what we hear quite often, actually.
So what are the risks?
Speaker 1 (01:22):
for an employer.
Well, I think the big one is afinancial and legal risk.
Oh yeah, to respond to thatmatter could require legal
assistance, which in itself hasa cost, and depending on the
severity and the outcome of thathearing, of the proceedings,
you could be forced to pay afinancial amount to compensate
(01:44):
someone if it's found that thatwas unjust or something, for
example.
Speaker 2 (01:47):
Yeah, that's right.
So that's a pretty big one.
And so then there's that costof the compensation, but there's
also, if you end up having todefend it in legal proceedings,
more costs there, and that'sgoing to be regardless of the
outcome.
So if you end up in court oryou end up before the commission
, it's going to cost you money.
Yes, whether you win or youdon't.
Speaker 1 (02:09):
Exactly, so best avoided.
There is a couple of thingsthat can happen, isn't there?
It's not always.
We'll just give you money tomake you say sorry, it's not
like that.
It could be reinstatement.
It could be compensation.
I think it's important to notecompensation is equivalent, or
it's maxed out to the equivalentof six months' pay.
Yeah, so legal proceedings.
Speaker 2 (02:30):
It's not just the cost of the legal representation
, though, is it so?
It's preparing the documentsand then the potential of having
to pay some sort of settlementor compensation, as we're
talking about yeah.
So then there's thereinstatement of an employee.
As you mentioned, Fair Work canactually, or the commission can
, order you to reinstate anemployee to their former
(02:52):
position.
I think that's usually based onwhether they want that or not.
Speaker 1 (02:56):
Yeah, I think you're right.
Is that right?
Let's say the argument was Iwas unfairly dismissed because
my job's still there, justsomeone else has got it, or
something like that.
The decision may be well, youshould actually have to put the
person back in that job becauseit was theirs.
So yeah, that might apply insome cases.
Speaker 2 (03:14):
So that could be very uncomfortable for a couple of
reasons.
One you might have already putsomeone else in their job, so
what are you going to do?
Pay two wages for the same roleor the fact that someone has
made an unfair dismissal claimagainst you in the first place?
It's going to be prettydamaging to the working
(03:35):
relationship.
Speaker 1 (03:36):
Yeah, that's safe to say.
That would be really awkward.
Well, on that topic of morale,the unfair dismissal claim can
have a further reaching effectthan just between the person
that's claiming it theex-employee, and the employer.
It can actually go furtherreaching to the other rest of
the team, can't it?
Speaker 2 (03:52):
Yeah, I wonder how often that does have a negative
impact.
Wouldn't be interesting to know.
Speaker 1 (04:00):
Well you know it's not uncommon for staff in a team
to talk about.
I got this bonus, this one.
You know whing not uncommon forstaff in a team to talk about.
I've got this bonus, this one,you know, whinged at me because
I forgot to do this report thisweek and that sort of thing,
Just like that.
You know, people can talk andtalk about the fact that there's
a claim out there and wonderwhat it's about.
Speaker 2 (04:16):
Yeah, and so you could be looking at effects like
reduced productivity, even ifit's just from people gossiping,
increased absenteeism or evenother people going oh, this
isn't really where I want towork if they perceive that the
person has been treated unfairly.
Speaker 1 (04:36):
Well, look, we'd hope that none of our listeners
would do this.
But let's just imagine if anemployer happened to have an
unfair dismissal claim, and thenanother one, and another one.
That's going to look really bad.
That might be a situation wherethe rest of the team go.
I don't want to work here ifeverybody's being fired and
going for this sort of thing,yeah, good stuff to make them
(04:56):
question, and I would just liketo make a point here the
perception is the important part.
Speaker 2 (05:02):
So there may not even be any unfair dismissal claims,
but if there's the perceptionthat someone who's left has been
treated poorly, that's going tohave an effect on morale.
Speaker 1 (05:15):
Yeah, absolutely, because they'll think they're
next or could be next.
Speaker 2 (05:19):
And this is where it's important to be very
transparent with staff aboutwhat's going on.
You know, being open aboutsomeone leaving as in don't just
let them disappear and thenleave everyone wondering yeah,
but on the other hand, you knowyou don't have to go into the
grim details.
Speaker 1 (05:40):
No, and depending on who you're speaking to in your
team, you know managers mightneed to know a little more than
you know.
Co-workers of the person that'sleft, for example.
But it just makes me think aboutthe reasons why an employee or
ex-employee may claim unfairdismissal is usually when things
get a bit yucky.
You know, it might've been,maybe there was serious
(06:02):
misconduct, or you know theywere terminated rather quickly,
or it was redundancy and it wasunexpected from their side and
all of a sudden they've got nojob.
It's usually quite emotional,isn't it that time for them?
Speaker 2 (06:14):
Oh yeah, definitely.
So one of the other risks andthis sort of carries on from
what we were saying about whatstaff the remaining staff might
think about there being anunfair dismissal claim is your
reputation or damage, or youknow just as look people talk,
as we said, so it's going to beknown somewhere.
(06:36):
If it is a dramatic case or youknow a high-profile
organisational industry, youmight even find that there's
media attention on it.
Yeah, which you don't reallywant.
Nobody would want that, but evenso, in a small community where
a lot of our clients are based,like, your employees are part of
(06:59):
the community right.
So the word gets out about anorganisation.
Speaker 1 (07:04):
And I'm not sure at what point, but it would become
public knowledge through.
If you're one of those peoplethat likes to Google case law,
you could eventually find itthere too.
Yeah, exactly.
Speaker 2 (07:14):
I wonder how many candidates look up their company
?
I wonder.
Probably not many.
Only sneaky people like us thatwould think of that.
Another thing about unfairdismissal is that it's a big
distraction from the day-to-daywork if you're the manager who's
dealing with it?
Speaker 1 (07:31):
That's a good point.
Yes, it would be taxing both ontime and your stress about it,
and all of that taking theresources away from your
day-to-day job just to deal withthat.
Speaker 2 (07:42):
Having to get together whatever documentation
you need.
Yeah, it could be a lot of timethat you don't really have.
Who's got time for more?
Speaker 1 (07:51):
work.
Yeah, yeah, you're right,because there is a fair bit to
the process.
You know you'll respond andthen you'll be asked to
participate in things, and it'sa to and fro a lot.
So it's not just kind of a caseof filling out a form and not
much else.
There's a lot to it.
So it's yeah, it's an ongoingsort of thing too.
Speaker 2 (08:15):
Yeah, yeah.
And one thing most of usprobably wouldn't think about is
that if you have an employee orsorry, ex-employee who's
willing to put in a claim forunfair dismissal, there's also
the potential or could be thepotential there for other claims
.
So it might be to do withadverse action or discrimination
.
So from that same person, thatsame situation, you could find
yourself exposed in other areasas well.
Speaker 1 (08:35):
So this is where we get specific, because there is
unfair dismissal, which has avery definitive list of things
that make a person eligible todo that.
They have to have obviouslylost their job, and it needs to
be within a certain period afterthey lost their job.
And, as we said before, it'scapped at certain things.
Adverse action is a little bitmore flexible in its definition,
in that you could have beentreated badly or lost your job
(08:59):
because of something.
There's a lot more that can bebrought into that, and then
there's other things as well.
If you went and spoke to alawyer, there's probably five
more different ways that youcould sue an ex-employer.
So, yeah, if the unfairdismissal might not be something
that they because it's fairlyeasy to start an unfair
dismissal claim for anindividual but if they don't
(09:20):
have the successful ending thatthey were hoping for, you're
right they may then go oh well,let's try something else.
The other thing that comes tomind, susan, is that if you have
an unfair dismissal claim, nomatter the outcome, really it
could bring your business insort of under the spotlight, so
there could be potential forfurther scrutiny, whether it be
(09:42):
you know checking that youcomply in other areas or you
know being very sensitive tofurther unfair dismissal claims
in the future.
Speaker 2 (09:49):
Yeah, so that would require you to make sure that
all your compliance is up todate, I suppose really including
that you're paying people theright pay rates because we know
that's an area of focus at themoment.
Yeah, yeah, gosh, there's a lot, isn't there?
Yeah?
Speaker 1 (10:06):
And I guess look, I don't like to go there, but if
it was a successful successfulis not the right word, but if
the claim was upheld and therewas something that the employer
needed to do differently,there'd be a certain amount of
work.
Then, after the fact, to go,okay, well, we need to change
our practices in performancemanagement or communication or
whatever it might be, to preventit from happening again.
Speaker 2 (10:28):
Yeah, changing policies, so there's actually a
lot.
Speaker 1 (10:33):
Yeah, we've painted a pretty negative sort of picture
.
Speaker 2 (10:37):
I shouldn't be laughing because you know,
coming from an HR perspective,when people say I'm so worried
about unfair dismissal, I tendto brush it off a bit, thinking
well, if you're doing the rightthing, you probably won't need
to worry about it.
But when you look at the risksthat are there for business, I
can see why people are worriedabout it.
Speaker 1 (10:57):
Yeah, and it's scary, I can imagine, because you're
having to answer for somethingthat you've done in the best
interest of your business mostly, and having fair work coming
and knock on your door is notsomething that happens every day
.
So I can understand thatapprehension.
But hang with us, because we dohave a lot of tricks up our
sleeve, because we know, susan,don't we?
(11:17):
The things that we would workwith our clients on to prevent a
lot of all this stuff, keywordbeing prevent.
And so, yes, look, there are alot of things on the negative
side that might be in your mind,you might have considered
before, but there's also a lotthat you can do to prevent it.
Speaker 2 (11:36):
How did you get into your business?
Sometimes it's because you'regreat at a particular thing or
you've got a passion forsomething and you know that you
can do it a little better thanwhat other people are already
doing.
Now that you're in business,you've discovered there's a lot
more to it than just having theright skills.
Especially when you've hired ateam, you might have learnt the
(11:56):
financial skills that you needbecause you had to, basically,
but where do you go to developthe HR and the leadership skills
that you need?
If you're feeling overwhelmedin managing people and all the
other things that come withrunning a business, we can help
you.
We'll guide you through theskills you need to feel more
confident in leadership.
Go and check out the coachingpage on our website or schedule
(12:19):
a call with us at astorhrcomau.
Now it's back to the episode.
Speaker 1 (12:28):
Okay, susan.
So we did talk about the risksand the fears, I guess, and
associations with unfairdismissal, and they're all valid
.
Now let's get onto the goodstuff.
Let's paint a better picture,and can we start with thinking
about?
Let's define who is eligible toapply for an unfair dismissal
claim.
Speaker 2 (12:47):
So obviously they're an employee.
Speaker 1 (12:48):
Mm-hmm.
They have limitations that theyneed to apply within 21 days
after they've finished up, so iftheir last day was yesterday,
it's 21 days from there.
Speaker 2 (12:59):
Yeah, and also they need to have been employed for a
certain minimum period.
Ah, you're right.
So for small businesses thatminimum period is 12 months.
A small business is fewer than15 employees, so 1 to 14
employees minimum period 12months.
All other businesses it's sixmonths.
Speaker 1 (13:20):
Okay.
So if someone had only beenwith you four months, they
couldn't go for this Right.
Speaker 2 (13:25):
So there is a thing called the Small Business Fair
Dismissal Code and we willprovide a link to this.
But if again, as I said, 1 to14 employees who qualify as a
small business, if you can showthat you have followed this code
at the time the person wasdismissed, then they can't claim
(13:48):
unfair dismissal.
Speaker 1 (13:49):
Right, and it's a really handy guide, very
practical.
It has a lot of things in therethat you can just implement, to
which some of them willprobably be going through, to
reduce the risk of that beingdone.
Speaker 2 (14:00):
Yeah, it's a great document, and if you haven't
looked at it, I recommend it.
So now we've cleared who canand when.
So, as for our list, then, whatwe would do, well, the first
one is understanding thelegislation, so knowing what the
conditions are.
So we finally covered that justthen, didn't we?
Speaker 1 (14:20):
We did yeah.
But I guess, holisticallythinking about employing people,
you want to know what the fairwork is, what it includes, the
awards that you're paying peopleunder all those pieces of the
puzzle.
You've got differentlegislation about super, about
long service leave, aboutworkers' comp.
If you're not sure about thoseand that's quite okay, because
(14:40):
not everybody loves to read lawget the help of somebody that
knows about that.
Speaker 2 (14:47):
By which you mean us right.
Speaker 1 (14:48):
Oh yeah.
Speaker 2 (14:51):
Yeah, so you know the law.
Well, you've got advice fromsomebody who knows law and knows
what's what.
You also need to have fairreasons for the dismissal, so
let's have a look at what avalid reason might be.
Sure, so it could be poorperformance, misconduct or
redundancy.
So your reason doesn't justhave to be a reason that you
(15:15):
think is a good reason.
Yeah, it does have to be soundand defensible and
well-documented.
Speaker 1 (15:23):
Yeah, absolutely, and there's definitely room to have
determinate employment if youneed to.
Those things are pretty clear.
Yeah, Determination has tohappen because you know
misconduct is reserved forthings that are of a serious
enough nature and there we'retalking instant dismissal, yeah.
Yeah, and when it comes down toit, redundancy certainly is,
but poor performance as well.
When it comes down to it is abusiness decision because you're
(15:45):
needing A to be done and it'snot being done, or redundancy,
you no longer need A to be done.
Yeah, I.
Speaker 2 (15:54):
you no longer need A to be done.
I was going to say we could doa whole podcast on performance
management and I think wealready have, but I think this
is probably an area where a lotof business owners and managers
get tied up.
They really don't want to havethose performance conversations.
Oh, they're hard, yeah, whenthey do, it's put off and put
off, and then it's not reallydone properly.
And then it gets to the pointwhere it's, you know it gets
(16:16):
emotional.
Speaker 1 (16:17):
Yeah, absolutely Dealing with humans.
Speaker 2 (16:19):
Yeah, exactly, and this could be probably a very
common scenario for what ends upas an unfair dismissal case,
because people are just notclear on what you were really
saying and why they were let go.
Speaker 1 (16:33):
So what you could do, saying and why they were let go
.
So what you could do instead isagain having a very clear
procedure of how you might gothrough that and again, if
you're not sure, get the help ofsomebody that can help you and
is an expert in that area,someone that can even walk you
through that process.
I know we've done that recentlyfor a couple of clients.
So, yeah, it's okay if it's notsomething that you're an expert
in.
Not everyone can be an expertin everything.
Speaker 2 (16:54):
No, but we're here to guide you through that, ideally
, we'll have policies thatalready guide you through that,
policies and procedures thatcover what happens, what's your
disciplinary process and whathappens when you're approaching
termination.
And as well as having thosepolicies, you need to know that
they're compliant with theAustralian law.
(17:15):
Good point.
Speaker 1 (17:20):
Susan, a term that we are familiar with and we
introduce our clients to a lotis procedural fairness.
Speaker 2 (17:25):
So perhaps we can explain what we mean by that
it's a lot of things.
Speaker 1 (17:30):
The law, especially employment law, loves that word
fair and reasonable you know,that sort of thing, but doesn't
really define it.
But anyhow, procedural fairnessis a lot of things.
It's an umbrella statement thatreally talks about what you're
doing, that is evidence-based,that you can show that you were
fair, you had a procedure, thatit wasn't biased or
(17:51):
discriminatory in any way, butactually based upon a business
decision.
Speaker 2 (17:56):
And compliant with the law and compliant with the
law.
There's another piece to that,and that's that the person
themselves has an opportunity torespond.
Yes, that's valuable, yeah.
Speaker 1 (18:06):
Yeah, absolutely so.
Some small things, like whenyou're holding a performance
management meeting, you mightoffer the person to have a
support person there.
Speaker 2 (18:15):
You might give them adequate notice of the meeting.
Yeah, Let them know what theissue is that is going to be
discussed.
You might also make sure thatthe meeting is documented, and
once it is documented onceyou've held the meeting, they're
allowed to respond to whateverit is documented.
Speaker 1 (18:32):
Once you've held the meeting, they're allowed to
respond to whatever it isAllowing them to respond and ask
questions definitely important.
Speaker 2 (18:39):
The other important thing is that, although a
support person can we would sayshould be present in the meeting
, they're not there toparticipate in the meeting.
Speaker 1 (18:48):
No, that's interesting, isn't it?
So they're not there to be anadvocate?
No, they're literally there tobe an advocate.
No, they're literally there tojust support them.
Emotional support.
Speaker 2 (18:57):
Yeah, exactly.
Speaker 1 (18:58):
Yeah, so not much else.
They're not really there towell.
In fact, we'd say don't letthem participate in the
conversation, more than to saylet's take a break.
Speaker 2 (19:06):
Yeah, exactly so it's quite reasonable for the
support person to do what youjust said.
So we need a break now and todiscuss outside the room if they
even want to.
But yeah, they're not there totake part in the meeting or to
be the advocate for the personwith the performance issue.
Speaker 1 (19:24):
So you might have gathered from what we're saying
about procedural fairness andholding meetings and documenting
things, that documentation isso important yeah, you're going
through this process and so allstages of it, really so you
might be as formal as to haveminutes of a meeting, but I know
of cases where diary notes havebeen just as important, of when
(19:47):
particular things happen.
Let's say, even in the case ofperformance management, if an
employee was not or didn't dosomething right or something
occurred on a particular day, adiary note of when and where
that happened and what it was isalso a good piece of
documentation.
Speaker 2 (20:04):
Yeah, well, that would be something, then, that I
assume you'd be taking to themeeting where you're discussing
the issue with the said employeeand then warnings would need to
be in writing.
Speaker 1 (20:16):
Yeah, if it gets to it, you're giving them a formal
warning.
Speaker 2 (20:19):
And any other sort of correspondence.
One mistake that I've seenhappen a lot is people have the
performance meeting, or whateverwe want to call it,
disciplinary meeting.
Yeah, and in the manager's mindit's quite clear that they've
warned this person, that this istheir first warning, and blah,
(20:40):
blah, blah.
Speaker 1 (20:40):
Yeah.
Speaker 2 (20:41):
However, at no point has it been mentioned, or even
in the invitation to the meetingor anything like that, has it
been mentioned that the person'semployment is at risk if they
continue with this behaviour orthis poor performance or
whatever.
So until you've done that, youhaven't really warned them at
all.
Speaker 1 (20:59):
Yeah, yeah, you're right.
Look, it's all really awkwardand uncomfortable, isn't it, for
someone that's not experiencedin HR, like us, or comfortable
with it.
It's not easy to have theseconversations, but you're right.
Specificity and saying thoseparticular things, giving the
notice, saying it's in regard toperformance.
(21:20):
If it's a warning letter, likeyou say, it's very valid to say
your employment will be at riskif this does not stop happening
or those sorts of things arehard to say, but they're
absolutely necessary, exactly soif again, if you're not feeling
comfortable, that's whereprobably better to get some
expert advice to to help youthrough that that's true, and
just because you've said that tosomeone doesn't mean that
(21:42):
you're being unfair.
No, no, not at all, because, asyou said, it's a business
decision.
Speaker 2 (21:46):
If the performance isn't happening or there's
behaviour that you don't want tosee repeated, then you're well
within your rights to say ifthis continues, this could
result in you losing your job.
Speaker 1 (21:58):
Yes, yes, absolutely.
And I would say to our clientsif it's a business decision,
it's because you know you need X, y and Z done.
That's not being done.
If you've given them a chanceto improve that, because that's
what you've needed and that's inthe contract and so on, all of
that stuff that we're talkingabout you've been procedurally
fair.
It's okay to make that decision.
Speaker 2 (22:20):
Yes, it's awful.
Speaker 1 (22:21):
Someone's losing their job and it's not great,
but it's a part of a businessand it's part of an avoiding
risk, you know, for yourbusiness and serving your
customers and all of that.
So yeah, it's complicatedbecause we're dealing with
humans, but be assured, ifyou're doing it for the right
reasons, that's okay.
Speaker 2 (22:38):
Yeah, so another way of avoiding an unfair dismissal
claim would be to get legaladvice, especially if it's a
messy sort of situation.
And by messy.
I mean, you know there's somany grey areas in employment
and it's not always exactlyclear cut, and legal advice
(22:59):
might help you to clarify justwhere you are in the dismissal
process and what needs to happento avoid an unfair dismissal
claim.
I'm not saying that you alwaysshould get or need legal advice.
If you follow, for example, thesmall business code that we
talked about, then you may notneed it, but sometimes we can
(23:20):
sense that there's an issuewhere the relationship's already
broken down.
Speaker 1 (23:26):
Yeah.
Speaker 2 (23:28):
So you probably need to tread with care.
Speaker 1 (23:30):
Yes, every situation's different.
Like I said earlier, there's somany pieces of the puzzle when
it comes to legislation, andsometimes they fight against
each other, whether it be adefinition or which one takes
precedent or priority.
There's also case law, which isa lot relied upon, a lot.
Someone like a lawyer would beacross all of that and be able
(23:51):
to support you.
You can go to just a lawyer, orthere are actually people
that's… Industrial relations,yeah.
They specifically assist peoplein industrial relations law, and
so those sort of people wouldbe well familiar with what the
process is in front of thecommission.
Speaker 2 (24:07):
Yeah, so related to that is being careful about all
your communication.
Speaker 1 (24:15):
Ah, there's that word again Communication.
Yeah, I think we're up to 52this time.
I don't know If this is yourfirst episode you're listening
to welcome.
We talk about communication alot, but you're right,
respectful communication isimportant and definitely part of
being procedurally fair.
Speaker 2 (24:35):
And you know making sure that you're communicating
the reasons and things like that.
I mean, it sounds like itshould be obvious, but in the
heat of the moment it doesn'talways happen.
Speaker 1 (24:45):
Well, it's like if you think again about a
performance management example,you know one might think oh, can
I say that you know they had areally crappy attitude towards
our team meeting the other dayor something like that.
Well, sure, but try not to putit into your words.
You know if you're documentingthat or you're even
communicating it to them.
Explain.
(25:09):
The expectation is thateverybody come with a
professional attitude andparticipate in the conversation.
Something like that is a lotmore respectful in communication
than to say listen, yourattitude was crap and we can't
have that right.
Right, so yeah.
Speaker 2 (25:20):
Good point.
I like that, okay.
So anyone who has ever had todismiss someone or let someone
go will realise that there'scertain legal requirements,
quite aside from avoiding unfairdismissal and all the rest of
it.
So they come down to giving thecorrect notice period or
payment in lieu of notice andany severance payments that
(25:45):
might be due to that person, andso you need to be sure that
you're complying with Fair Workand that employee's contract or
the award or whatever instrumentthey come under.
Speaker 1 (25:55):
Yeah, so notice period for those who might not
know applies both ways.
So if a person resigns, theyneed to give you notice, right,
that they're going to be doingthat.
Well, the same applies for you.
If you're the employer going toterminate that employment, you
give them notice as well, and ifyou can't do that, then you pay
them in lieu of that.
Yeah, which is equal paymentfor that notice period or what
(26:16):
it would have been.
Speaker 2 (26:17):
Yeah, exactly, and please note that, as an employer
, you can't claim unfairresignation.
No, sometimes it would be niceto be able to.
And all this comes down to theinteraction between people,
doesn't?
Speaker 1 (26:34):
it yeah.
Speaker 2 (26:35):
And just being careful about what you say and
following correct process andcommunicating, and you might
find that there's some trainingthat's required for your
managers and team leaders, oreven for yourself.
Yeah, really good point, and wecan help you with that as well
Just making sure that when adisciplinary matter happens or
(26:56):
there's termination, that it canbe done effectively but, also
legally.
Speaker 1 (27:01):
Yeah, you know, if you have someone like us or a
lawyer, that sort of thing inyour corner, we can support you
through the process to make surethat you're doing it in a fair
way, so that, yes, it doesn'tfeel comfortable and it's a bit
you're worried after thiswhether they're still going to
try an unfair dismissal claimyou might lose some sleep.
You might.
We might too, but you know,having someone in your corner to
(27:24):
say, look, it's okay becausewe've got this piece of evidence
and we've done this fairly andwe've got this and done that and
the decision you're making isnot discriminatory, it's not
whatever, it's fair All thosethings can hopefully help you
feel a little bit more assuredthat you're okay.
Speaker 2 (27:39):
And I think you'd agree with me, Angela, that
every single case is different.
Oh yes, so you need to getadvice for your specific
circumstances in the situationthat you find yourself in to
avoid unfair dismissal.
Speaker 1 (27:51):
And let's end on a happy note.
There are some unfair dismissalclaims that go against the
claimant.
So the employer is found tohave to do nothing.
Speaker 2 (28:00):
Yeah, exactly.
Speaker 1 (28:01):
Because it was fair and it was compliant.
There's nothing to worry about,so that can happen.
Speaker 2 (28:06):
And I think it's really useful to keep those few
words in mind.
Speaker 1 (28:11):
Those few words being harsh, unjust or unreasonable
yeah, so hopefully that has notbeen too daunting a list.
Hopefully there's somethingwe've left you with there that
gives you some assurance that ifthat's on the horizon for you,
you're well equipped to dealwith that.
Make sure that we put that listin our show notes.
So if you want to refer back tothat, you can and, as we said,
(28:33):
if you want to reach out to us,we'd love to have a chat with
you and see how we can help youavoid or deal with these sort of
matters, and we'll also put alink in the show notes to that
small business dismissal codethat we mentioned.
Thanks for listening to theWork Wonders podcast brought to
(28:56):
you by Asta HR.
Hit the subscribe button now tonever miss an episode, and if
you'd like to continue theconversation with us, you can
find us over at astahrcomau.
See you in the next episode.
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