Employment
The Fair Work Act: A Guide for Employers
The Fair Work Act 2009 is the cornerstone of employment law in Australia. It provides a framework for the rights and obligations of both employers and employees. Whether you are
Not all dismissals of employment are unfair. In many cases, employers may have valid reasons for terminating the employment relationship.
However, fair reasons for dismissal can still lead to claims that dismissal was not fair.
In this article, Farrah Motley, a qualified Australian employment lawyer, outlines 6 fair reasons for dismissal in Australia. Farrah has provided legal representation to employers and workers at the Fair Work Commission.
An employer may fairly dismiss an employee if they cannot meet the requirements of their role. The job description may set out the inherent requirements. Or, the employee’s day-to-day duties may have changed over time. In that case, employers should review what the employee is actually doing as part of their role.
The employer can fairly dismiss an employee if the tasks are essential and the employee cannot fulfil the requirements.
Examples of a failure to meet the essential requirements of a role include a failure to:
It is important to assess whether the person’s role means that a particular requirement is essential. For example, working well as part of a team may not matter for a cleaner who works alone.
An employee who has poor performance is a common reason for employers to terminate employment.
Employers must follow an appropriate process to avoid a claim for unfair dismissal. This process should involve setting expectations with an employee and monitoring their performance. It should also involve giving an employee an opportunity to respond.
Employers may act if the employee’s performance continues to be poor. This may include dismissing the employee.
It’s important to be able to show that terminating employment was not harsh, unjust or unreasonable. If an employer dismisses an employee on valid grounds, the dismissal of employment is likely to be fair. Employers support this by following a good dismissal process.
A fair reason for dismissal includes serious misconduct. Serious misconduct entitles an employer to immediately dismiss an employee. The employer does not have to give notice in cases of summary dismissal.
Dismissal of employment is likely to be fair if the employer dismisses an employee for serious misconduct. This includes behaviour such as theft, sexual harassment, or other serious grounds.
It’s important that:
An employer can make employees redundant if their role is no longer required. The employer fairly dismisses an employee when there is a genuine redundancy.
A genuine redundancy involves:
Employers who don’t follow proper procedures when business slows down may still unfairly fire an employee. Employers must ensure the reasons for dismissal are fair as well as the process.
An employer may have a right in an employment contract to dismiss an employee.
For instance, high-income earners often have termination clauses in their employment contracts. These clauses allow their employer to terminate employment with notice.
An employer must strictly follow the contract to avoid unlawful termination. Further, fairly dismissing an employee will never involve reasons such as illness, religious beliefs or other protected rights. An employer must avoid any discussion concerning those matters when terminating an employment agreement.
It is also important to pay out any outstanding leave or entitlements on termination.
Employees can only make an unfair dismissal claim where:
A minimum employment period is an important part of making an unfair dismissal claim.
The Fair Work Commission cannot hear the claim even if the dismissal was harsh unjust or unreasonable. People often make objections on these grounds.
However, employers must still ensure that they do not dismiss employees because of a protected right. For example, employers must not fire employees because of their colour, race or religion.
If the above reasons are not the reason for the employee’s dismissal, the dismissal may be unfair. This may also be true if the employee was forced to resign.
Learn more about unfair dismissal cases and eligibility in our article.
Yes, if the employer follows a proper process, including setting expectations and giving the employee an opportunity to improve.
Serious misconduct includes actions like theft, sexual harassment, or other behaviour that justifies immediate dismissal.
We understand unfair dismissal is a key concern for employers when terminating employment.
However, unfair dismissal can include other situations where the termination breaches legal requirements or employment contracts. This could include:
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