Unfair Dismissal, General Protections & Redundancy
Managing the workforce can sometimes be a difficult and daunting task. We specialise in putting together preventive measures and advising you when things go wrong.
We offer legal advice on all aspects of employee management including:
- Developing workplace policies and procedures;
- Unfair dismissal claims;
- General Protections claims;
- Serious Misconduct;
- Performance Management;
- Underpayment of wages claims;
- Parental leave;
- Redundancies and restructures; and
- Modern Award interpretation.
The workplace relations and employment law team has significant experience in dealing with claims before the Fair Work Commission and the Federal Court and Federal Circuit Court of Australia. It is important that parties are fairly represented in tribunals and courts and our team of lawyers approach advocacy with due diligence with the primary goal of achieving a positive outcome.
Dealing with an Unfair Dismissal matter, in some respects, can be one of the worst nightmares for an employer. Here are some tips for dealing with an unfair dismissal claim.
- Try and Get Advice Prior to a Dismissal
Many claims can be prevented if advice is received prior to dismissal. It might mean slowing the process down, requiring a show cause process to be in place or a performance management plan. What is clear from the case law that many instant dismissals are based upon angry reactions from employers or simply not knowing their obligations under the Fair Work Act or equivalent state legislation.
- Gather Evidence
Once you receive an application you should analyse the contents and arguments been made and match this up to the relevant provisions under the Act. This will give you some direction as to what evidence needs to be gathered. More importantly you should also look at past performance or behaviour. Has there been fraudulent claims of expenses against a policy like claiming for smokes, alcohol or food without pre-approval? Does a forensic scan of their emails show disclosure of confidential information to third parties? Have they taken client lists with them to their new employer? Are there witnesses that can attest to rebutting any argument they are making about aspects of the unfairness of the dismissal?
- Consider the Commercial Aspects
Is it practical and commercial to settle? What is the employee claiming? Typically a disgruntled employee will claim for much more than the claim is worth – you should assess as possible because if it is a money grab then a quick settlement might be more commercial than running a matter to a hearing.
- Attend Conferences Looking for a Resolution
As much as possible when attending a conciliation conference go in with the intention to resolve no matter how angry the employee makes you with their allegations. It is the most commercial and practical thing to do.
- Always Have a Deed
If you settle – always have a Deed in place with confidentiality and non-disparagement obligations that are tight and well through out. Also consider tax ramifications of any settlement and the payment terms. A bar to future claims is essential you don’t want the employee making another claim such as for underpayment of wages or discrimination.
Unfair dismissal matters can be a paid – for employers keep in mind those tips and in the majority of cases employers will get a commercial and practical outcome that can help business move on.
When terminating an employee – a General Protections claim is the most dangerous and problematic to defend.
Terminating the employment of a staff member is never a pleasant ordeal, most of the time employers and managers would have had a gut feeling or knew a lot earlier they wouldn’t work out – in the end firing an employee can be very messy. Most employers are concerned about unfair dismissal claims however, General Protections matters are by far the most dangerous claims.
A general protections claim can take many shapes and forms however the most common one is when an employee claims that there employer has taken adverse action against them such a terminating their employment or demotion for exercising a workplace right such as making a complaint regarding their pay or requesting flexibility for work hours.
In our experience we are seeing more of our clients deal with general protections claims and there a few reasons for this. The first major one is that there is a reverse onus of proof – namely in general protections matters an employer is presumed guilty until they can disprove otherwise. This can be quite difficult to do and clear evidence from the key decision maker will need to explain that the reason for why the adverse action – the firing for example was taken for a reason other than a prohibited one. That is, it wasn’t done because of a query from a employee regarding their wages, because they are a female, the employee is getting older or because they are a union member.
Secondly, although compensation can be awarded in these matters, penalties can also be awarded of up to $63,000 and more significantly an individual involved in the breach can be labile for up to $12,600. This is the scary thing, directors, managers, HR consultants, advisors and even accountants and CFOs can be held liable for being in breach of a general protections provision.
Also remember, in general protections claims, employees can make a claim whilst they are still employed.
Undertaking redundancies are always unpleasant here are some steps to take which will reduce your legal liability and mitigate some risk:
- Consult and review relevant awards/EBAs, Employment contracts, any policies for terms and conditions in relation to a redundancy.
- How much will be paid? What is required to be done? Are there specific consultation obligations?
- Ensure you have a complete understanding of your contractual and\or legal obligations
- Have you considered all alternatives? Have you considered redeployment? Remember redundancy should be a last resort.
- Assess the motivating reasons for the redundancy. Consider whether the reason would amount to a genuine redundancy.
- Do you no longer wish the job to be performed by anyone because of changes to operational requirements?
- Decide on a selection method that is fair, non-discriminatory and easily justified to other parties. Failure to do so could lead to claims of discrimination, unfair dismissal or dismissal for a prohibited reason.
- Interview with all redundant employees and provide with a letter outlining their entitlements and redundancy date. Answer any questions the employee may have.
- Have all provisions of redundancy been undertaken including notice period and redundancy pay
- Advise suppliers and key clients of the employees’ departure- you do not have to necessarily disclose the reason for their departure, simply that they are no longer with the company. However, consider defamation legislation, public relations, client engagement and commercial and practical needs when making this assessment of what to say.
- Notify third parties such as industry associations, superannuation funds, WorkCover and other insurance providers of the employees’ departure
- Change security codes and passwords to prevent the employee potentially accessing sensitive information.
These simple steps can prevent the majority of claims ever been made and will definitely mitigate the risk of a successful one.