Fair air Reasons for Dismissal in Australia: A Guide to Proper Termination
Australians pride themselves on the culture of a “fair go.” This value extends to the legal structure of our businesses. Specific legislation exists to protect the rights of both employers and employees.
When you terminate an employment contract, you must follow all relevant legislation. You must also ensure you have fair reasons for dismissal in Australia. The law protects workers from being sacked because of an employer’s personal grievance or an emotional overreaction.
Valid Categories for Dismissal
In reality, firing someone is more complex than the movies suggest. Generally, fair reasons for dismissal in Australia fall into four categories:
- Capacity: The employee is incapable of completing their job duties.
- Performance: The employee fails to meet the standards in their employment contract.
- Misconduct: The employee violates workplace standards or engages in serious misconduct.
- Redundancy: Technology or business changes make the employee’s role unnecessary.
To protect yourself against unfair dismissal claims, record all evidence against an employee. You should also seek advice from an HR expert to ensure you comply with the Fair Work Code. Assurance HR can discuss your situation with you; getting early advice saves time and money.
How to End Employment Properly
Whatever your fair reasons for dismissal in Australia may be, you must provide the employee with a formal notice period. This period varies based on their length of service. You must always provide this notice in writing.
This table shows how much notice you need to give someone. Note: if an employee is over the age of 45 and have worked for you for at least two years you are obliged to give them an extra week’s notice on top of this:
| Length of employment | Minimum notice given |
| Less than 1 year | 1 week |
| 1-3 years | 2 weeks |
| 3-5 years | 3 weeks |
| Over 5 years | 4 weeks |
It’s important to note that these minimums apply in all circumstances, including an employee currently on leave, or on probation. The only circumstances in which this does NOT apply are in situations of serious misconduct.
Unfair dismissal
A person can make an unfair dismissal claim if they have:
- Completed the minimum employment period
- Are covered by a Modern Award (or award-based transitional instrument) or if an enterprise agreement (or agreement-based transitional instrument) applies to the person
A person has been unfairly dismissed when the Fair Work Commission is satisfied that:
- The person has been dismissed
- The dismissal was harsh, unjust, or unreasonable
- The dismissal was not a case of genuine redundancy
- The dismissal was not consistent with the Small Business Fair Dismissal Code, where the employer is a small business.
The Fair Work Commission looks at the following criteria to decide if a dismissal was harsh, unjust, or unreasonable:
- a valid reason for the dismissal related to the employee’s capacity or conduct
- was the employee notified of that reason and given an opportunity to respond
- if the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable
- whether the employee had been previously warned that their performance was unsatisfactory
- If the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee, and
- any other matters that the Fair Work Commission considers relevant.
For more information check Fair Work Ombudsman website
If you’re thinking about terminating someone’s employment it’s worth getting all the facts first. Make an appointment to sit down with one of our Assurance HR team members, and we can make sure you’ve got everything covered correctly. Call us today on 1800 577 515.
