Termination of Employment

PHILIP BREWIN, Accredited Specialist Workplace Relations for Nevett Ford Melbourne Lawyers reports on the termination of employment and what every employer needs to know.

MANY businesses find themselves involved with Fair Work Australia following the termination of employees.

All businesses need to take preventative action to avoid the time and expense of such disputes. Businesses need to diarise to review a new employees progress during the minimum employment period. This is one year for employees of small business (fewer than 15 people) and six months for all other employees.

During the minimum employment period, an employer should assess the capacity and conduct of the new employee, and if an employee’s conduct or aptitude for the job is doubtful, the employment can be terminated without the risk of an unfair dismissal claim. The rule should be that if an employer has doubts they should not keep the employee, as once they get past the minimum employment period, the employee will have the protection of the unfair dismissal laws.

UNFAIR DISMISSAL

For a dismissal to be unfair, Fair Work Australia must determine whether it was harsh, unjust or unreasonable and not a case of genuine redundancy.

Employers should get advice as to steps that need to be taken to reduce the risk of a successful unfair dismissal claim. Such steps include:

• Warning the employee that they risk being dismissed if they do not improve their performance;
• Providing the employee with the opportunity to respond to warnings in a reasonable time;
• If poor performance of an employee is due to a lack of skill or training the employee should be given training and the opportunity to develop such skills.

It is always best for employers to obtain preliminary legal advice in relation to termination issues as such advice may be far more cost effective than attempting to resolve the matter after termination has occurred and the parties become embroiled in a dispute at Fair Work Australia.

ADVERSE ACTION

Employers also must be careful not to take adverse action (within the meaning of the Fair Work Act) against an employee or potential employee.

An employer can be subject to sanction and required to pay compensation in circumstances where adverse action is taken against an individual. Under the Fair Work Act employees and even potential employees are protected from a full range of adverse actions. Adverse actions include termination of employment, refusal to employ or redeploy, altering the position of an employee to the employees prejudice.

Examples of protections include prohibition from taking adverse actions such as termination of an employee, or refusal to employ a prospective employee, for reasons of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy,religion, political opinion, nationality or social origin. An employer must also not dismiss an employee because the employee is temporarily absent from work because of illness or injury.

Protections from adverse action to employees and potential employees are provided by the Fair Work Act irrespective of how much a person earns or how long a person has been employed. Every employer should be very careful when considering whether to terminate a persons’ employment or where they arguably injure his or her employment or alter the position of the employee to the employee’s prejudice or discriminate between the employee and other employees of the employer.

The clear lesson for all employers is that preventative legal advice should be obtained prior to making decisions that could cost an organisation tens of thousands of dollars in costly legal disputes.

Nevett Ford Melbourne specialises in workplace issues and is happy to assist CMPA members on all aspects of employment law.

For further information contact Mr Philip Brewin fr m Nevett Ford Melbourne Pty Ltd on 03 9614 7111.

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