INTHEBLACK November 2021 - Magazine - Page 48
F E AT U R E
// E M P L O Y E E D I S M I S S A L
Above: Giri Sivaraman, Maurice Blackburn
“THERE HAS TO BE A VALID REASON TO TERMINATE
AN EMPLOYEE, BUT EVEN WITH A VALID REASON, A
BUSINESS MUST FOLLOW PROCEDURAL FAIRNESS...
PROCEDURAL FAIRNESS IS HAVING A PROPER
OPPORTUNITY TO KNOW THE ALLEGATION AGAINST
YOU AND TO BE GIVEN A CHANCE TO RESPOND.”
GIRI SIVARAMAN, MAURICE BLACKBURN
threshold of A$153,600, unless they are covered
by an industry award or enterprise agreement.
For companies with fewer than 15 staff, the Small
Business Fair Dismissal Code applies. Under that
code, people are unable to make a claim if they are
dismissed in their first 12 months of employment, if
they’ve lost their job because of a business downturn,
or if their role is no longer required.
An employer needs to provide reasons for a
proposed dismissal and give the employee an
opportunity to respond. The reason for the dismissal
and the process that is followed are taken into account
when determining if the dismissal was fair.
Valid reasons to terminate an employee can include
poor performance, misconduct, dangerous behaviour,
redundancy and refusing to follow instructions.
“There has to be a valid reason to terminate an
employee, but even with a valid reason a business
must follow procedural fairness,” Sivaraman says.
48 ITB November 2021
“I still have cases where someone is brought
into a meeting and told their employment is being
terminated and asked to respond immediately.
“That’s not procedural fairness. Procedural fairness
is having a proper opportunity to know the allegation
against you and to be given a chance to respond.
“Even if there’s a valid reason, and even if you’re
afforded procedural fairness, sometimes it can be
considered harsh.
“Even though there may be a valid reason to
terminate, it’s still unfair, perhaps because of their
length of service, their age or maybe they weren’t given
proper training about behaviour at work or safety.”
HAVE POLICIES AND PROCEDURES IN PLACE
The general rise in unfair dismissal applications by
individuals is a clear warning signal for businesses
to be prepared to deal with potential claims.
All employers should have written employment
termination policies and procedures. These should be
procedurally fair, up to date, and take the Fair Work
Commission considerations around unfair dismissal
into account.
The policies and procedures should be clearly
outlined in an employee handbook, and all employees
should show, with signatures, that they have read
and understood the employee handbook and the
organisation’s policies and procedures, including those
relating to employment termination.