Legal
March April 2002
Unfair
Dismissals
By Tom Williams, Solicitor
Small business employers often complain about the laws
relating to dismissals. These complaints are loudest when a person is
dismissed for poor performance or dishonesty, many times in justifiable
circumstances, but the dismissed employee files for an unfair dismissal
application.
The complaint on the unfair dismissal laws becomes a crescendo
if the dismissed employee is found to have been unfairly dismissed.
In such cases, the employer is ordered to take the employee back or
alternatively, is ordered to pay the employee compensation - sometimes
of many thousands of dollars.
To add insult to injury, the employer is sometimes forced
into this hurtful position even though the employee was "obviously"
dishonest and/or may have been employed a short time only.
Who hears unfair dismissal
applications?
Dismissed employees subject to an Industrial Award or earning less than
$72,000.00 per annum (thereabouts) have a right to lodge unfair dismissal
applications if they think they have been unfairly dismissed. These
applications can be lodged with either the Industrial Relations Commission
of New South Wales (IRC) or the Australian Industrial Relations Commission
(AIRC). The Industrial Award or the Industrial Agreement under which
the employee is employed will govern which Commission has jurisdiction.
If the employee was under a State Award or Agreement, then the correct
jurisdiction will be in that state. Likewise, if the employment was
under a Federal Award or Agreement, then it will be the AIRC. If the
employee or the employer claims there is no Award or Agreement covering
the employment, which is most unlikely, and the employee was under $72,000.00
in total remuneration per year, then the employee can choose to go to
either the IRC or the AIRC.
What is an unfair dismissal?
According to the rules relating to unfair dismissals, there are normally
two considerations applied to determine whether a dismissal was fair
and just. Firstly, in terms of what the employee is accused of doing
wrong, is dismissal an appropriate punishment in the circumstances.
Secondly, even if dismissal is an appropriate response to the wrong-doing
of the employee, was the employee given sufficient and proper opportunity
to defend himself or herself for what he or she is accused of doing.
Within these considerations many misunderstandings occur.
For instance, under the first consideration, many employers simply tire
of an employee who is unreliable or unpunctual or has poor attitude.
The employer simply doesn't have the resources, the time or the patience
to counsel the offending employee. The employee is terminated and given
one week's pay in lieu of notice. When this happens, the termination
will almost always be seen as an unfair dismissal. The reason being
that the offending employee had no opportunity to place a defence to
the offence. And, most likely, they would have had no clear understanding
of what was so annoying to the employer.
Under the second consideration, it is essential that when
an employee is behaving poorly or is uncooperative or unreliable in
work expectation, that he or she be counselled. A verbal counselling
is useful but will not substitute for a written warning that clearly
states what the offence is and the likely consequences to the employment
if there is no improvement. The difficulty with verbal counselling is
that the meaning of the spoken word can be easily misunderstood or misinterpreted.
For this reason, the Industrial Commission is loath to rely on verbal
counselling as hard evidence that the employee knew exactly what the
complaint against him or her was.
Therefore, an employee who believes his or her level of
co-operation and effort is sufficient cries foul when discovering it
is not so and are subsequently dismissed without opportunity to improve.
How many times do I
have to warn?
There has been a myth that has developed that upon given three written
warnings "I can sack". Unless an Award or Agreement specifically
states this, then such a myth is simply that, a make believe. The number
of written warnings is determined by the seriousness of the offence.
An example is that should an employee kick you in the
shins because you reprimanded him or her, it is hardly required that
you need to warn the employee not to do it again upon pain of dismissal
if he or she does so.
An employee who is caught with their hand in the till
is not required to be warned "not to do it again". What is
required is that you had good reasons to believe that it was an act
to remove money for the employee's benefit and without the employer's
authority. This is usually established by asking the offending employee
to explain why his or her hand "was in the till"
What you should not
do
It is important you don't act against an employee on a whim. Likewise,
you should not terminate an employee on a suspicion or because somebody
else told you that "this is what the employee did". On all
such occasions, you have a duty to approach the employee and put to
him or her what is alleged against them. The employee has the right
to respond to the allegation. If necessary, carry out a reasonable investigation
to satisfy yourself that what was alleged is correct and not just hearsay.
If you are satisfied that the employee did offend as alleged
and if the offence goes to matters of personal honesty or issues of
trust between you and the employee, then dismissal most likely, will
be justified.
Casual Employees
Many employers don't appreciate the fact that casual employees can access
unfair dismissal applications. A regular casual employee, in many circumstances,
has the same rights as does a full-time or part-time employee. It is
a mistake to believe that a casual employee can be terminated and nothing
can come from it. There have been many instances where casual employees
have received compensation or have been re-instated to their positions
by orders of either the IRC or AIRC. In matters of disciplinary procedures
you are best advised to treat a casual employee as you would a permanent
employee.
Of course, a casual employee who is not regular and who
comes to work only from time to time and does not have a clear work
roster may not come within the unfair dismissal laws. The law may not
apply to such an employee.
How can I be sure?
Like all human systems and legal cases, one can never be absolutely
certain of every case. It is impossible to give a blueprint of what
you should do in every case, as each case will differ in some way. However,
the above provides some guidelines which you may find helpful.
If you are uncertain, it is best to get advice prior to taking any
action. If you do seek advice don't leave it for too long after an issue
has broken as silence on your part can sometimes mean acceptance.