Avoiding Unfair Dismissal Claims

Posted By Chris Delaney / Uncategorised / dismissals, harsh, small business dismissal code, termination of employment, unfair dismissal, unfair dismissals, unjust, warning letters, workplace relations advice / No Comments


Avoiding Unfair Dismissal Claims

Sound procedures provide a clear and transparent framework to deal with difficulties that arise in the workplace. They are also necessary to ensure that all employees are treated in the same way in similar circumstances, to ensure issues are dealt with fairly and reasonably and, in the event of dismissal or dispute, that the employer are compliant with current legislation for handling disciplinary and grievance issues.

Performance improvement procedures are necessary:

  • So employees know what is expected of them in terms of standards of performance or conduct (and the likely consequences of continued failure to meet these standards).
  • To identify obstacles to achieving the required standards and agree suitable goals and measures for improvement in to assist the employee to improve.
  • As evidence for an industrial tribunal that the employer has taken all reasonable steps before dismissing an employee.

Remedies for unfair dismissal

If Fair Work Australia is satisfied an employee was unfairly dismissed then it may order the employee’s reinstatement, or the payment of compensation to the employee if satisfied that reinstatement is inappropriate.

There are two main areas where a disciplinary system may be used: performance and conduct/behaviour.


Dealing with issues informally as they arise is a good first step to dealing with performance issues. However even at this early stage it is wise to document everything.

If informal options fail a more formal disciplinary procedure should be commenced.


Employee misconduct could range from continued lateness, failure to follow a reasonable management instruction, abuse of the organisation’s computer system or Internet access, bullying behaviour or creating a hostile work environment, through to theft, fighting and committing criminal offences. The more serious offences may constitute serious and/or willful misconduct. In all cases, even serious misconduct, an employer should attempt to follow fair and formal procedures consistently with all employees.

Handling performance improvement interviews

All supervisors and managers should be trained and supported so that they are able to conduct these types of interviews. The HR department (if you have one) should be able to assist them by providing a source of advice on preparing for and conducting the interview and relevant legislation. If not use your industry association

Every Performance Improvement interview should have at least 3 elements to them:

  • discussion
  • an opportunity for the employee to respond and,
  • Written records


All records should be kept meticulously, as this will be vital should a case be taken to The Fair WorkCommission. The type of records that should be kept by employers are minutes of meetings, emails, text messages, attendance notes, notes of telephone calls, copies of correspondence, warnings etc.

After the meeting, the employer may decide that no action is necessary. For example, if an employee was unclear about what was expected from them and they agree to try to resolve the issue via additional support or counselling.



Alternatively, the employer may decide to give the employee a warning. An organisation’s policy should outline exactly what warnings will be given, but the following are likely:

  • recorded verbal warning
  • first written warning
  • final written warning.

Depending on the seriousness of matter there may not be three warnings.

Decisions of industrial tribunals have generally set 6 months as the life of a warning after which it has less significance.

Where misconduct has been very serious, it may be appropriate for the warning to continue to be regarded indefinitely.


Employers should ensure that:

  • there is a valid reason for the dismissal,
  • the employee was given the reason
  • the employee was given a genuine opportunity to respond to any allegations,
  • the employee was previously warned about the performance or conduct and given an opportunity to improve.
  • the employee was allowed a support person

Employers need to be sure that any decision to dismiss an employee will be seen as ‘reasonable’ by an industrial tribunal. Often that means that the process should have been fair, not just the reason.

Small Business should follow the Small Business Fair Dismissal Code available on the following link: www.fairwork.gov.au/ending-employment/unfair-dismissal

WRS viewpoint

Ensuring that people are treated fairly and enabling them to work in a hostile-free environment are important factors in the creation of a productive working environment. WRS believes that where possible employers and employees should seek informally to resolve most matters that arise in the course of the working relationship. This approach helps minor concerns to be resolved speedily without the need to recourse to formal action. It also limits disruption to work and reduces any personal embarrassment in discussing issues of concern.

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