If you unfairly dismiss an employee, they can raise a complaint with the Fair Work Commission, which may investigate. If Fair Work agrees the employee was unfairly dismissed, you may receive a fine, and may even be made to reinstate the employee, Hawker says.
Reasons that are not valid for sacking someone include sex, race, age, disability or lawful industrial action of the employee, explains Walker.
“If a performance or conduct problem is linked to one of these areas, then dismissing someone because of that problem could also be unlawful. And if an employee raises a query about aspects of their employment such as pay, work hours, or a safety issue and they are dismissed as a result of raising that query, then it is also unlawful,” Walker says.
“Even if a reason for termination is valid, a dismissal can still be found to be unfair if the process followed is harsh or unreasonable in the circumstances. Because most of these elements aren’t black and white, checking with an HR expert or employment lawyer is usually a good idea,” she says.
A good way to avoid legal claims is to simply treat employees in the way you would like to be treated, Sydney employment law specialist at StevensVuaran Lawyers, Angus Macinnis says.
“An employee who feels they have been treated unfairly is much more likely to bring a claim, even if the legal basis for the claim is weak. If possible, you should avoid dismissing someone on a Friday, because that employee will have the weekend to dwell on the perceived injustice, and the legal claims they might bring, rather than getting on with life.”
For more information, Fair Work provides a free fact sheet on terminating employment.
An employer has a fairly free hand to choose which employees to make redundant, according to Macinnis.
“However, it’s a good idea to have some objective selection criteria, which will give the redundant employee an idea of why they were selected, and will also exclude the possibility of a hidden reason, such as the redundant employee’s gender, race or disability, for example,” he says.
Also, remember there is no obligation to offer voluntary redundancies before making involuntary redundancies, he explains.
Hawker adds that employees are entitled to redundancy pay, unless you have fewer than 15 employees, then you don’t have to pay redundancy, but you still need to follow the same processes and pay notice and personal leave.
