As an Employer and part of the HR team, you have made the difficult (and maybe sometimes not so difficult) decision to terminate the employment of an employee.
Expectedly or unexpectedly you have received an unfair dismissal claim, a claim wherein the employee argues that the termination of employment was harsh, unjust or unreasonable.
What do you do now?
Here are 3 quick considerations for Employers and HR teams:
1. What are the weaknesses in your case?
There are elements for an employee to argue and prove namely:
- Was the dismissal harsh, unjust or unreasonable?
- Was there a valid reason for dismissal?
There are few points to consider, firstly, a valid reason for dismissal on its own will not be a complete defence to an unfair dismissal claim. As an employer you also need to provide arguments that procedural fairness and natural justice have been taken into account. Some of those elements include:
- Was the employee notified of the reason for dismissal?
- Was the employee given an opportunity to respond to the allegation, performance issue or other reason for dismissal?
- In the event of a conduct issue was a show cause process and investigation undertaken?
- In the event of a performance issue was a performance management process undertaken?
- Was the outcome proportionate to the conduct or performance issue?
- Were the economic and personal consequences of the employee considered?
- If the employer was a small business employer was the small business dismissal code followed?
On the fact finding side, you will need to have an understanding of the reason for dismissal, who was involved and if there any witnesses (or further witnesses) which will require some discussion with.
After going through this process you will have a better understanding of the strengths and weaknesses in your defence therefore the strategy to be implemented.
2. Consider your counter measures
Initially when reading an application you will usually see a variety of arguments.
If the employee is represented by a law firm chances are it will be more well thought out and the elements of harsh, unjust or unreasonable are set out. That is because the onus of proof lies with an employee in an unfair dismissal claim.
If the applicant is self represented or is represented by a more generic advocate the application may be incoherent or basic. It might not even be clear what they are relying upon to file the dismissal claim.
If you do have weaknesses in your defence you need to consider how you will counter this you may want to consider a number of strategies:
- seeking legal advice to counter any arguments made by the employee
- understanding the people involved and whether there are any other issues that need to be considered such as past misconduct or performance issues
- if you do have witnesses ensuring a statement is obtained
3. What are the commercial implications?
Even if the employee is seeking reinstatement you need to consider the commercial implications.
Firstly, there is a good chance the matter may settle at the conciliation conference stage (or even before). What is the company willing to pay not just financially but in terms of time and energy of employees and the company as a whole.
Secondly, do you need external help? If so, what is the business case for doing so. Claims that are a little complex or messy will usually need some advice by a law firm. If you are looking to file a jurisdictional objection (for example the application has been made out of time) strongly consider what an expert employment law firm can provide for you.
There may well be other considerations such as breaches in other jurisdictions or legislation which could be used to your advantage or could be a weakness in your defence.
Acting on an unfair dismissal case quickly is integral to ensure all potential strategies can be implemented and used to leverage a better outcome and position.
Need some help with an unfair dismissal claim you have received? The Employment Law team at South Geldard Lawyers are here to help. Don’t hesitate to contact Employment solicitors in Rockhampton and Brisbane for an initial consultation.
