We recently presented a Business Briefing with an update on Employment Law and thought we would share some of the key messages from our presentation in this week's article.
Did you know that in the first quarter of 2019 there were over 3500 unfair dismissal applications lodged with the Fair Work Commission? While 79% resolved at Conciliation conference, 172 applications ran to a final hearing.
In considering whether to grant an unfair dismissal remedy, the Commission will consider a number of factors including:
- Whether there was a valid reason for the dismissal and whether the employee was notified of the reason. There can be a valid reason but the dismissal can still be found to be harsh, unjust or unreasonable, if the action was disproportionate to the reason or misconduct.
- Whether the employee had an opportunity to respond to the allegation. These difficult conversations and meetings are where many employers fall down, but are essential to ensure procedural fairness.
- Whether the employee was given warning about their performance – many employees are taken by surprise when they have not been given warning, or issues arise where the warning is not in writing, or followed up in writing, even if in an email.
- The size of the employer's business – the larger the enterprise the higher the standard of compliance with proper procedures will be imposed.
- In cases of misconduct the Commission will consider whether the behaviour was condoned or accepted by the employer. It is therefore important that any misconduct is dealt with immediately so that everyone within the business knows what behaviour is acceptable and what is not, particularly when issues of safety arise.
- Broad and vague policies forming the basis of a dismissal have also seen employers get into strife in dismissing staff. It is important that policies have a clear purpose and intention if discipline might follow from breaches.
Our experienced team can assist with any questions you have about contracts, policies, processes and your obligations as an employer in managing employment matters.
We also offer businesses the option of joining our Kenny Spring on Call service, which provides you the ability to get unlimited and real time advice to avoid legal problems, including employment and HR matters, to find out more give our team a call on 1800 650 656. We're here to help with Employment Law!
Angus Edwards | Principal