Unfair Dismissal

Unfair Dismissal

April 8, 2016 Compliance
Unfair Dismissal -

If I terminate an employee and they claim Unfair Dismissal, how do I know they won’t be reinstated?

The short answer unfortunately is that you don’t, however a recent claim heard by the Fair Work Commission has shed some light on what factors will be considered when deciding if an employee should be reinstated following a successful Unfair Dismissal claim.

The Fair Work Act states that reinstatement is inappropriate in circumstances such as:

  • where the employer discovers after a dismissal that the employee had engaged in an act of serious misconduct that itself justified dismissal;
  • the employer’s business no longer exists; or
  • the employee is incapacitated through illness or injury.

In addition to the above however, the Commission also deemed it necessary in this case (which involved two teachers) to consider:

  • the likelihood of “continuing ill-will between the parties” given the employee’s view that management at the school discriminated against them and breached workplace laws;
  • the extent of damage caused to the relationship between the employee and employer; and if it is in fact, irreparable;
  • Declarations and statements of other employee’s concerns regarding the possibility of the employee’s return to the workplace.

What does it all mean?

As an employer, the best defence to Unfair Dismissal claims is to ensure due process is followed when terminating employment. A consistent, documented process both reduces the likelihood that the employee will make an unfair dismissal claim; but it reduces the likelihood that if a claim were made, it would be successful, let alone have an order of reinstatement included in it!

You can read the details of the case here:

Thinh Nguyen and Thanh Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (21 October 2014)

To discuss your situation regardingUnfair Dismissal or if you wish to organise outplacement assistance for an employee you are making redundant, contact the friendly team here at HR On-Demand on 1300 55 99 62.

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