Posts: Unfair Dismissal

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Unfair Dismissal

Employer ordered to pay maximum compensation following “entirely unjust” disciplinary process

Knives Out

The Fair Work Act 2009 (Cth) (FW Act) requires that employers comply with a number of procedural elements in a disciplinary process prior to making a decision about whether an employee’s conduct or behaviour warrants disciplinary action.


Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

Pick up the phone

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.


Employee fails in bid to have safety-related dismissal found to be unfair

Garbage in, garbage out

A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable.


Full Bench quashes order to reinstate labour hire employee to host employer

Host with the most

In the unfair dismissal jurisdiction, where it is found by the Fair Work Commission (FWC) that an employee has been unfairly dismissed, the primary remedy under the Fair Work Act 2009 (Cth) (FW Act) is for the employee to be reinstated to the position they held immediately prior to their dismissal or another position on no less favourable terms.


Workplace Relations Review

Cases and Legislation December 2020

In response to the COVID-19 pandemic, the Full Bench of the Fair Work Commission amended the Clerks – Private Sector Award 2020 in March 2020 to include temporary measures to facilitate working from home arrangements.


Workplace Relations Review

Cases and Legislation November 2020

The Federal Circuit Court of Australia has rejected an employee’s claim that she was discriminated against because of her pregnancy and potential pregnancy.


FWC upholds objection to constructive dismissal claim

Construction zone

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct.


Termination of employment letters

In your letter

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.


Workplace Relations Review

Cases and Legislation September 2020

The Queensland Government recently passed legislation amending the Criminal Code Act 1899 (the Code) to criminalise wage theft by employers in Queensland.‍The Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (the Bill) was introduced to the Queensland Parliament in response to a Report released in 2018 by the Queensland Parliamentary Education, Employment and Small Business Committee following an inquiry into wage theft in Queensland. The Report identified critical issues in wage theft as well as deliberate action taken by employers to frustrate employees’ attempts to recover entitlements.


Key Takeaways from our Webinar

Managing Workplace Behaviour: "You Get What You Tolerate"

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission which provide some good guidance for employers.


Workplace Relations Review

Cases and Legislation August 2020

‍NEWS ALERT - Paid Pandemic Leave introduced into Health Sector Awards Over the course of 2020, the Full Bench of the Fair Work Commission (the Full Bench) has heard and determined applications to vary modern awards to deal with the COVID-19 pandemic.


Webinar: What You Need to Know: The Rise of Adverse Action and Unfair Dismissal Claims

2020 continues to deliver unprecedented challenges to employers as they manage the economic and workplace culture impact of COVID-19. Difficult, but necessary, decisions taken in relation to workforce numbers together with increased poor employee behaviour has seen a dramatic rise in the number of unfair dismissal and adverse action claims.


FWC upholds dismissal of employee who stored marijuana equipment in the workplace

Taking the high ground

In deciding whether to take disciplinary action against an employee, it is important for employers to ensure that the employee is given a reasonable opportunity to provide a response or explanation before a final decision is made, particularly when it concerns matters that could result in summary dismissal.


Server dismissed for inappropriate conduct towards co-workers

Out of service

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.


Unfair dismissal and calculating the high income threshold

The high life

In the reporting year 2018/2019, the Fair Work Commission (FWC) received 13,928 unfair dismissal applications. Undoubtedly, unfair dismissal applications are amongst the most common received by the FWC.


The importance of effectively understanding and communicating performance issues

Soft(ware) skills

Performance management is a challenging process, which can be further complicated when employees are working remotely.


Casual swearing no excuse for conduct

A little less conversational swearing

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.


FWC reinstates pelican feeder to job 'as rare as hen's teeth'

The Pelican Brief

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness


Unfair dismissal, genuine redundancy and the redistribution of duties

Being genuine

Discussions with employees about restructures and redundancies are difficult and emotions often run high.


The importance of correctly characterising employee conduct

In the driver’s sheet

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct.


Texting, dismissal and the FWC

Not ok in any (con)text

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion.


FWO investigation finds Uber drivers not employees

Tripping Out

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.


FWC finds resignation warranted

May The Force Be With You

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour.


The importance of consultation in the redundancy process

Talk to Me

The Fair Work Act 2009 (Cth) (FW Act) provides that a person will not be unfairly dismissed where the person was dismissed as a result of genuine redundancy.


Employee on stress leave did not abandon employment

No good in goodbye

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.


Unfair dismissal claims and “valid reasons”

Valid point

According to the Fair Work Commission’s (FWC’s) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC.


FWC upholds dismissals from workplace with “robust environment”

A break from banter

It is becoming increasingly challenging for employers and employees to understand where the line is between a relaxed, open and friendly workplace culture


FWC finds employee’s persistent breaches justified dismissal

On repeat

The matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.


Employer awarded $35,000 in costs after defeating adverse action claim

Weighing the costs

In a matter recently before the Federal Circuit Court of Australia an employer successfully claimed that an employee acted unreasonably in the course of proceedings and the employer was awarded costs of $35,000.


FWC finds employee not dismissed by text message

In conTEXT

In most cases, it is clear when an employee is dismissed or has resigned. There is usually some formal discussion or at the very least, a termination or resignation letter.


Employee who brought firearms and explosives to workplace not unfairly dismissed

Pistol Pete

We all have different hobbies, activities or interests we want to share with our friends and colleagues. However, not all interests are appropriate for the workplace.


Fair Work Commissioner considers Facebook posts as evidence in an unfair dismissal matter

It wasn’t me

Employees active on social media (such as Facebook) fail to consider who might be able to see their personal online posts at any given time.


Employer reasonable in not accommodating employee’s variation of hours request

It’s all about me

One of the logistical challenges often faced by employers is the management of rosters and employee working hours. There are a number of factors to take into consideration when it comes to this.


Flight attendant’s claim that excessive drinking was not his fault rejected by FWC in unfair dismissal case

Flight of fancy

Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.


Dismissed employee compensated despite vulgar language

Size doesn’t matter

Small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation.


Vehicle services attendant dismissed for lying on his CV

The truth Hertz

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.


FWC rejects employee’s bid to reopen unfair dismissal claim after parties fail to sign terms

Yes, yes, no

The purpose of a conciliation is to help the parties resolve the matter without the need go to a full hearing before a FWC member.


A lesson on the importance of formal communication structures in the workplace

Careless whisper

Last-minute meetings and unexpected emergencies (especially safety emergencies) mean that messages and information often need to be relayed to employees almost instantly.


What to do when a client or host employer won’t work with an employee

You’re banned

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.


FWC upholds dismissal following obstructive and uncooperative conduct of employee and union rep

I Want It That Way

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.


Employee awarded compensation for dismissal over Facebook Messenger

Respect my authority

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.


Why the term ‘hush money’ is misleading

Hush Hush, Hush!

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.


FWC criticises employer’s inflexible refusal of Pilates

Meet me halfway?

FWC has found an employer was unreasonably inflexible when it dismissed an employee who had requested to finish work 15 minutes early to attend prepaid Pilates classes.


FWC finds attempted character assassination and confidentiality breach valid reasons for dismissal

Vendetta, vendetta!

Managing conflicting personalities can be one of the most challenging aspects of being a manager. Particularly when low level disagreements escalate to formal complaints, investigations, attempts at character assassination and breaches of confidentiality.


FWC finds title of “Director” not sufficient to defeat award coverage

Director delusion

It has often been the case that “managers” and senior officers of an enterprise will not be covered by a modern award or enterprise agreement.


Getting your mobile phone policies right

You used to call me on my cell phone

It is rare to come across someone who does not have their mobile phone in their hand, pocket, bag or otherwise within reaching distance at all times.


Dismissal unfair where allegations that an employee leaked information were unsupported and employee’s WHS reporting was justified

Can you back it up?

Employers should be mindful that employees have a responsibility for health and safety within the workplace and are entitled to (and should be encouraged to) raise health and safety matters.


Dismissed employee’s illnesses not enough to defer performance management processes

PIPped at the post

A failure to take into consideration an employee’s health concerns during a performance management or disciplinary process may not only place an employee’s health at further risk but can also increase an employer’s exposure to claims under employment, workers compensation, bullying or discrimination laws.


FWC finds employee fairly dismissed for refusing to hand over investigation evidence

Hand it over

When an employee refuses to hand over information or evidence that the employer considers is relevant to an investigation, a formal direction may be issued.


Employee suspended without pay later terminated due to absence from work

Should I stay or should I go

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.


FWC to rehear extension of time application following Full Bench finding that partially unexplained delay not fatal to employee’s case

Extension tension

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances.


FWC finds Uber driver not employee

I’m free, to drive when I want, any old time

The Fair Work Commission recently handed down a decision in which it considered whether an Uber driver could be an employee for the purposes of the Fair Work Act 2009.


Inherent Requirements and Psychological Conditions

Psychological and physical conditions can be treated the same for the purpose of an employer assessing whether or not an employee is fit to perform the inherent requirements of his/her role

As our readers are aware, we have previously blogged about including psychological testing as part of a pre-employment medical. Building on that theme we now comment on a recent FWC decision involving an employer’s ability to have existing employees undergo a psychological medical examination.


[No] ticket to drive – A lesson for employers

Employers are often in a difficult position when requested by employees to accommodate the loss or suspension of their drivers’ licence

In the recent case of Mr Christopher K v Linfox Australia Pty Ltd [2015] FWC 3967 the Fair Work Commission confirmed that there will be a valid reason for the termination of an employee’s employment where they are unable to perform the inherent requirements of their position.


Employer unreasonably ends Bryon Bay “work from home” arrangement

Lawful but not reasonable

Employees have an implied duty to obey their employer’s reasonable and lawful directions. Whilst employers cannot direct an employee to engage in conduct which is unlawful, the reasonableness of an employer’s direction will depend on the individual circumstances.


Modern award compliance failures also relevant in unfair dismissal proceedings

Valuable lesson for employers in relation to Modern Award compliance

A recent decision by Deputy President Bartel of the Fair Work Commission in Jaymon Hocking v Tackle World Adelaide Metro [2015] FWC 6519 (Hocking’s Case) provides yet another valuable lesson for employers in relation to Modern Award compliance.


Relying on CCTV footage in disciplinary proceedings

Caught Red Handed

In Peter Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express [2016] FWC 58 (Mulhall’s Case) Commissioner Simpson ordered the Employer to pay the Applicant $25,468.13 in compensation because the Commissioner found that Mulhall had been unfairly dismissed on the basis of “flimsy” surveillance footage.


Employee who faked test results abandons hearing

Running Man

Generally speaking, most matters in the Fair Work Commission run in a “no costs” jurisdiction. This means that parties bringing or responding to applications in the Commission will be responsible for their own costs - no matter who is successful. However, the Commission does have some discretion to order costs in exceptional circumstances. One such rare decision was handed down last week in G v Toll Holdings Ltd [2016] FWC 2790.


Employee who refused settlement offer ordered to pay employer's cost

You gotta fight for your right (to get costs)

In our recent blog we discussed the Fair Work Commission (FWC)’s discretion to make a costs order in exceptional circumstances.  The FWC in F v GHS Regional Pty Ltd [2016] FWC 3120 has decided to exercise its discretion to award costs in favour of the Employer once again.


Our 2017 wrap-up of social media in the workplace

Social savvy

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other. We look back on some of the more interesting social media cases from the year that was 2017.


Remedies for unfair dismissal applications

A bird, a bus and a bruised (but not broken) employment relationship

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation. Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.


Undies protest not industrial action – so what is?

Captain Underpants

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.


Appeals in the Fair Work Commission

Make it appealing

For the 2014-2015 year, 79% of unfair dismissal applications made to the Fair Work Commission (FWC) were settled at the conciliation phase. For the 21% that did not settle, some Applicants proceeded to have their matter heard by way of hearing.  If an Applicant is not satisfied with the outcome at the hearing they are able to lodge an application to appeal.  However, in order for an application to appeal to be granted, the Applicant must satisfy the FWC that it has proper grounds for an appeal.


Employee who visited non work related websites awarded $25,000 in compensation by FWC

Itsy Bitsy Teeney Weeney Yellow Polka Dot Bikini

A recent Fair Work Commission (FWC) highlights the importance of procedural fairness in disciplinary matters.


Time limits for unfair dismissal applications

Apologies for the delay...

Under the Fair Work Act 2009 (Cth), employees have 21 days from the date of the termination of their employment to lodge an application for unfair dismissal with the Fair Work Commission (FWC). If an employee misses this deadline, they are barred from bringing their claim unless they demonstrate to the FWC that exceptional circumstances apply to their case.


I'll make you a (redeployment) offer that you cannot refuse!

What is redeployment and acceptable alternative employment?

If the Fair Work Commission (FWC) finds that an employee’s employment was terminated on the basis of a genuine redundancy, the employee does not have access to the unfair dismissal jurisdiction. However, if the employee’s position was made redundant and the FWC finds that redundancy was not genuine, the employee will be entitled to access the jurisdiction.


Access to the Unfair Dismissal Jurisdiction


Employers unfamiliar with the unfair dismissal process often overlook an important part of their response to an unfair dismissal application: whether the former employee is even eligible to make a claim!


Unfairly dismissed 457 visa employee awarded maximum compensation

Foreign Language

Employees who are employed on working visas (for example subclass 457 or 417 visas) are able to make applications for unfair dismissal and have their case heard by the Fair Work Commission (FWC). An employer who fails to afford procedural fairness to a working visa employee can still find themselves in trouble in the FWC as demonstrated in GS v Dairy Kosher Catering Pty Ltd T/A Milk n Honey [2016] FWC 5284.


FWC finds pregnancy not a valid reason for dismissal

“No one puts baby in a corner”

There are a range of laws in Australia that protect people who are pregnant from discrimination and most employers are aware that pregnancy related discrimination in the workplace is unlawful. However, assumptions about the capacity of pregnant employees are often made without proper expert advice and unfortunately we are still seeing employers unlawfully act against the interests of pregnant employees.


FWC decision reminds employers about the need to be clear about termination dates


Fair Work Commission’s (FWC) Full Bench decision in Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub Case) is a good reminder for employers about the need for clarity with respect to termination of employment and in particular when a termination is to take effect.


Procedural problems did not make dismissal unfair

Small business matters

The Fair Work Commission’s (FWC) recent decision in CA v Lane Cove Retirement Units Association Ltd t/as Pottery Gardens Retirement Village [2016] FWC 7504 put the small business fair dismissal code (the Code) in the spotlight.


Recording meetings and other strategies for substantiating workplace discussions

Is this thing on?

All too often workplace disputes arise out of conversations or meetings where the participants have wildly different versions of events. The parties then end up before a court or the Fair Work Commission (FWC) where a judge or FWC member is tasked with deciding whose evidence they prefer – essentially, who appears to be more credible and reliable.


Refusing requests for annual leave

Leavin’ on a jet plane

A recent decision of the Fair Work Commission has highlighted the importance of correctly managing employees’ requests for annual leave (Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626).


The perks and pitfalls of texting in the employment relationship

I’ll txt u the deets

Text messaging is a good way for people to communicate as messages are generally short meaning senders stick to the point and messages are direct to a person’s phone. Unfortunately there are some major drawbacks to the use of text messaging in the employment context and we have noticed a steady increase in cases before the Fair Work Commission (FWC) where text messages have contributed to the situation in dispute.


Dismissal for injured employee discovered playing golf

Swing and a miss

In unfair dismissal applications, the Fair Work Commission must look at the factors under section 387 of the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.


FWC says unacceptable comment in the workplace didn’t warrant dismissal

Crime and Punishment

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.


Employee dismissed for out of hours conduct

Clocked-off but carrying on

Thankfully, most employers will never have to concern themselves with disciplining employees for their out of hours conduct, but on occasion an employee’s conduct after business hours and away from work can be so damaging or dangerous that an employer will have little option but to get involved.


Employee found to have bullied co-worker to join union not unfairly dismissed

To join or not to join...

In King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017] FWC 3867, the Fair Work Commission considered an unfair dismissal application where an employee was dismissed after it was found that he bullied another employee about joining the union.


Correctional services officer reinstated following inmate escape

The one that got away

In a recent decision of the NSW Industrial Relations Commission (NSW IRC), a senior corrective services officer (the Employee) was reinstated following his dismissal for involvement in an incident which lead to the escape of a maximum security inmate (Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051).


Employee awarded compensation after employer sidesteps representative

I’ll get my people to call your people

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.


Bad and threatening language in the workplace

Wash your mouth out!

There has been a spate of decisions delivered by the Fair Work Commission recently dealing with terminations of employment arising from the way employees have spoken to their managers. We all know that bad language in the workplace is unacceptable, but employers seeking to dismiss employees as the result of outbursts of profanity must still take the time to properly execute the termination process or risk adverse findings from the Commission.


Mining employee validly dismissed for incident management breaches

A diamond (miner) in the rough

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.


Full Bench rejects appeal from employee who altered medical certificate

Doctor, Doctor...

Employers and human resources professionals may often be provided with medical certificates which they are not quite sure about, prompting them to look at the certificate a bit more closely.


Best practice for dealing with poor performance issues

Better safe than sorry

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).


FWC finds employee’s heated mass email a valid reason for dismissal

“Dear all...”

The Fair Work Commission (FWC) has dismissed an application for unfair dismissal in Bosley v Kosciuszko Thredbo Pty Ltd [2017] FWC 3763, upholding the jurisdictional objections of the employer.


Ski employee was not dismissed

To everything there is a season

The Fair Work Commission (FWC) has dismissed an application for unfair dismissal in Bosley v Kosciuszko Thredbo Pty Ltd [2017] FWC 3763, upholding the jurisdictional objections of the employer.


FWC says captain who failed employer’s alcohol test was unfairly dismissed

“O Captain! My Captain!” – Not a vindication, but dismissal was harsh

Setting policies and procedures for the effective management of drugs and alcohol in the workplace is important, particularly for safety critical industries.


Jurisdictional objections in unfair dismissal claims

“You shall not pass!”

When an employer receives notice from the Fair Work Commission (FWC) of an unfair dismissal claim, the first question they should ask is – does the FWC have jurisdiction to hear the matter?


Employee ordered to pay employer’s legal costs

Called out in the Commission

In a rare decision by the Fair Work Commission (FWC), an employee has been ordered to pay her former employer’s legal costs after it held that the employee’s application had no prospects of success, was without basis and was an abuse of process.


FWC’s practical approach to notice of termination

“Let me make one thing perfectly clear …”

Section 117(1) of the FW Act states that, an employer must not terminate an employee’s employment unless, the employer has given the employee written notice of the termination date. This can sometime be problematic when termination occurs verbally before any formal written notice of termination has been prepared.


FWC finds high income earner covered by modern award

And the award goes to...

Identifying correct Modern Award coverage and classification can be challenging at the best of times and getting it wrong can have serious consequences. It is well understood that misclassifying employees can impact on rates of pay and result in underpayment claims, but employers sometimes forget that employees who are paid well above modern award base rates of pay can still be covered by a modern award for other purposes, including protection from unfair dismissal.


Relocation & Redundancy

I like to move it (move it)

The issue of relocating employees from one location to another arises when a business is restructuring, when a site closes down, or when a business decides to move its operations. A recent decision of the Fair Work Commission (FWC) considered the issues of relocation, redundancy and unfair dismissal.


Email and IT policies

Think before you click

The internet and email are essential tools for most businesses. Email makes correspondence and transactions simple and efficient, but it is also easy to send the wrong email to the wrong recipient!


Ramifications of unfair dismissal proceedings

It’s not over till it’s over

In part one and part two of our Employment Essentials Series we discussed procedural aspects of termination and the need for substantive fairness. In this third instalment we will discuss the various outcomes and ramifications for employers if they fail to settle an unfair dismissal claim before proceeding to a formal hearing and the potential fallout post proceedings.


Small business employers and the Small Business Fair Dismissal Code

Codes and Keys

For most employers the disciplinary process with its obligation to ensure procedural fairness usually leads to a well-documented but often protracted process. For small business employers, where an employer has followed and is compliant with the requirements of the Small Business Fair Dismissal Code, the employee is not (generally) to be considered to be unfairly dismissed.


Employment Law Essentials – Substantive Fairness

Substantive Fairness

When considering whether a dismissal is unfair, the Fair Work Commission (the FWC) will have regard to two types of fairness – procedural fairness and substantive fairness.


It’s all about the process

What to consider in the disciplinary process

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc) to overlook or shortcut the disciplinary process and to proceed directly to the termination of an employee’s employment. This failure to commence formal disciplinary procedures may expose employers to liability where the employee claims that he/she was denied procedural fairness.


What is “Procedural Fairness”?

Employment Law Essentials

Whether the termination of an employee’s employment was procedurally fair or unfair forms the basis of the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). Employers can often put themselves at risk of unfair dismissal claims when procedural fairness is not provided to employees during disciplinary action and / or the termination process.


What are the requirements for notice of termination of employment?

Two weeks’ notice

The requirements around when notice of termination is required and how to provide that notice can be difficult for employers. An employer’s obligations with respect to notice and notice periods are specified in the Fair Work Act 2009 (Cth) (FW Act).


Unfair Dismissals Quarterly Report released

Resolutions up and applications down

The Fair Work Commission (FWC) has released its Unfair Dismissals Quarterly Report for the period October 2016 to December 2016 (the Report). The Report revealed that there has been a decrease in the number of applications lodged with the FWC compared to the same period in previous years.