Do you understand what constitutes unfair dismissal? Do you know your obligations as an employer when terminating an employee?
We recently received this question:
QUESTION | We have employment contracts in place with all of our employees which have a clause relating to the Minimum Employment Period (commonly known as the Probation Period). If we terminate an employee within the ‘minimum employment period’, are we obligated to give a reason for the dismissal? If not, is it advisable to do so anyway?
ANSWER
Because your employee has not been employed in excess of the minimum employment period, you are not obliged to give reasons for the purposes of unfair dismissal law. Consequently, there is not access to unfair dismissal jurisdiction.
It is important to understand, however, that if you do not give a reason the employee might seek other available remedies relating to their dismissal. This might include going to the Fair Work Office and potentially claiming adverse action under the general protections provisions of the Fair Work Act.
What are the general protections provisions of the Fair Work Act?
The general protections provisions of the Fair Work Act are intended to protect an employee from adverse action. This includes termination by the employer. They relate to:
- a person’s “workplace rights”. For instance, their entitlement to benefits under an award/agreement or an Act.
- freedom of association. Including the right to join, or be represented or not represented by industrial associations such as a Union.
- protecting a person from workplace discrimination.
- provision for remedies where the protections have been contravened.
Other protections include not dismissing an employee who is temporarily absent from work due to illness or injury. For example, if the employee was dismissed because of a temporary absence from work due to illness or injury, the Fair Work Act provides protection from dismissal for the first three months of such an absence. This protection is provided under general protection provisions. As an example, if the employee is pregnant, they may suspect their pregnancy was the reason for their dismissal.
Another issue for employers with respect to general protections applications is reverse onus of proof. The reverse onus of proof is significant in that the employer must, by leading evidence, exclude the possibility the termination happened because the employee had a workplace right or exercised a workplace right.
A person may make an application to the Fair Work Commission (FWC) claiming a breach of the general protections provisions. If mediation before the FWC does not successfully resolve the matter, an application can be made to the Courts.
Because of the potential consequences for the employer resulting from a general protections claim, it is always prudent to detail the reasons for a dismissal to the employee, based on objective criteria.
Do you need some HR help? Get in touch with Lisa.