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Every 3.5 Minutes An Employee Lodges An Unfair Dismissal

Published December 04, 2017 (last updated June 25, 2020) -
Unfair Dismissal Claim

127 claims of unfair dismissal are made against an employer every day, with employers losing 60% of the time. These are incredible figures and highlight the challenges in managing staff in a small business.

With a system which makes it so easy for employees to claim unfair dismissal, employers can be excused for making mistakes and constantly feeling under attack as they manage staff. Gone are the days where challenging employers was a task usually left to trade unions; employees now have a wide range of third parties to go to including advocacy groups and no-win-no-fee lawyers.

Last financial year, the Fair Work Commission received 33,000 claims with unfair dismissals being the large majority at nearly double any other type of claim. There are some steps employers can take to minimise the risk of facing an unfair dismissal, including:

Clear description of unacceptable behaviour

Employers need to train staff on acceptable conduct and include clear descriptions of unacceptable behaviour in employee handbooks. This can cover several aspects of employee activity such as absenteeism, sick leave, and behaviour such as bullying and harassment.

Don’t keep policies in a drawer

When employers have created workplace policies, it’s important that they enforce them and that staff know about them. Something as simple as a quiz could ensure employees have read and understood the policies. It is also worth asking employees to sign something stating that they have read and understood the policy (and for employers to keep this record).

Reminding employees of the existence of the policies at relevant times is also a worthwhile exercise. For example, in preparation for the end of year staff party, it would be a good idea to send an email to staff drawing their attention to the bullying and harassment (and other relevant) policies and remind them that the policy and the behavioural expectations contained within still apply during the party.

Consistency is key

Any disputes should be dealt with consistently. Employers should adhere to their own policies and procedures. Addressing conduct issues in a consistent manner will help staff perceive what is appropriate workplace behaviour and what is not and will also reduce the risk of an allegation of unfair treatment due to inequitable application of the policy across the workforce.

Have meetings before the situation gets out of hand

If an employee is stepping outside of the defined code of conduct, employers may be within their rights to schedule a disciplinary meeting to clearly outline the employee’s unacceptable behaviour. Following this meeting, depending on the circumstances, a formal, written warning may be justified.

Employers should be careful in managing employee conduct, especially if it leads to a dismissal as the process may be heavily scrutinised and as illustrated by the statistics above there is every chance the employee will challenge the decision successfully.

For advice on how to manage an unfair dismissal, or for ways to stop an issue getting so far, employers should contact Employsure on 1300 651 415.

About Employsure

Employsure is Australia’s largest workplace relations specialists. We take the complexity out of workplace laws to help small business employers protect their business and their people.

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