By Gordon Parish

When managing the end of an employment relationship it is important to know your obligations and follow a fair and reasonable process.  Statistics show that employees are increasingly pursuing legal avenues against their employer for unfair dismissal (whether that be real or perceived) and defending such claims can result in significant time and cost for the employer.

Statistics provided by the Fair Work Commission earlier this year show that there were close to 18,000 unfair dismissal claims in 2014 and this is increasing every year.  While the majority are settled at the conciliation stage, most of these involve monetary payments to the employee ranging between $2,000 – $8,000, with some payments up to $40,000.

Fair Work Commission hearings are not only costly and time consuming; they are very disruptive for the business and stressful for all involved.

 To avoid this, we strongly suggest you follow these five “must do’s”:

  1. Have expectations clearly defined for all employees. Roles, responsibilities and expected outcomes from each employee should be well understood and documented usually by way of a position description. This should also include minimum standards of performance and behaviour.
  2.  Clearly defined policies and procedures. This includes a disciplinary procedure, a code of conduct, and a bullying and harassment policy. All employees should be made aware of these policies and procedures and they should be applied consistently.
  3.  Employees should always be treated fairly and reasonably and in any disciplinary processes the test of “reasonableness” should be applied. This includes providing employees with an opportunity to explain their view of the situation and why the problem performance of behaviour has occurred.
  4.  Document all counseling and warning sessions and be clear and specific as to the performance/behaviour problem, the improvement required, any commitments made by either party, when the situation will be reviewed and the consequences should the required improvement not be made.
  5.  If performance and behaviour does not improve and termination of employment is being considered, take the opportunity to have the matter independently reviewed to ensure all legal requirements have been met and the process followed stands up to the reasonableness test. In cases of misconduct or other serious breaches requiring instant dismissal, employers should still make sure the matter has been thoroughly investigated and the employee has been treated fairly. It is highly advisable that when instant dismissal is being considered, professional external advice is sought before a final decision is made.

Observing these tips will not eliminate all post-employment legal claims, however, it will reduce the likelihood of action being taken by the employee and minimise your legal exposure. It is also a good idea to have a professional review your current practices, policies and documentation to ensure that your business is in the best possible position to mitigate the risks of post employment legal claims.

* Gordon Parish runs Allan Hall Human Resource Service, an HR and Safety Business on Sydney’s Northern Beaches that provides advice and support to a wide range of businesses around Australia. As a surfer himself, Gordon has a solid understanding of the industry and has worked with many surfing related businesses.
Ph 02 8983752.