What is an Unfair Dismissal Claim?
Do you need to terminate or dismiss an employee? Do you want to minimise the risk of an unfair dismissal claim?
An unfair dismissal claim is a claim that an employee, who earns less then $140,000, can bring against an employer if they think their dismissal was harsh, unjust or unreasonable.
This most commonly occurs where there are performance issues with an employee or employee misconduct.
The employee has 21 days after the dismissal occurs to make an application to the Fair Work Commission.
How can I stop an employee from making an unfair dismissal claim?
You can do some of the following to minimise your risk:
- Performance manage your employee out of the organisation;
- Conduct a workplace investigation when misconduct arises;
- Be sure to issue written warnings;
- Keep a record of all verbal and written warnings.
When can an employee not make a claim?
An employee cannot make an unfair dismissal claim:
- If the employee has been employed for less than 6 months or, if it’s a small business with less than 15 employees, less than 12 months;
- If the employee worked as a casual but not on a regular and systematic basis;
- If the employee was employed under a contract for a specified period of time or a specific task;
- If the individual is a contractor; or
- If the employee was genuinely made redundant.
What happens once a claim has been made?
Once the employee makes a claim, you will then need to file an Employer's response form.
The next step is usually the Fair Work Commission holding a conciliation conference with you and your former employee to try and reach an agreement.
What happens if it does not resolve at conciliation?
The Fair Work Commission will then list the unfair dismissal claim for a hearing. Witnesses will be called and evidence will need to be prepared so that Commission Member can make a decision about the claim.
There are two types of remedy available:
Rarely, but on occasion, if the Fair Work Commission believes it is appropriate, they will order that an employee be reinstated.
If the Commission does not reinstate, then they may award compensation. The maximum compensation payment is 26 weeks. The amount of this compensation will depend upon, among other things, the length of your employment as well as your position within the organisation and importantly, the severity of the termination.
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