Legal Advice on Unfair Dismissal Cases Australia | Employsure Podcast


Hello everyone and welcome to this
episode of Employsure Essentials Today we’re going to be having a chat with Tariq Nasri one of our Senior Advisers here at Employsure and we’re going to
cover off some of the complexities of unfair dismissals we are seeing more
and more claims in the Fair Work Commission from employees and
unfortunately it seems to be the process employers are using in terminating an
employee that’s bringing them unstuck today Tariq is going to give you some
tips on how you can manage this process regardless of the type of business or
the industry you’re in so let’s get into it Hi Tariq thanks for coming today No, thank you for having me So today we’re gonna have a bit of a chat about unfair dismissals and and some of the things that can lead to that and and I think
the the big piece is employers getting termination wrong do you think that’s
fair? Yeah most definitely yeah So there’s probably a couple of termination
processes that that really come to mind and and when you and I were discussing
this capability termination was one that jumped off the page at me
what what exactly does that mean? Yes look capability termination refers to an employee’s ability or lack of ability to perform the inherent requirements of their
roles so that could be as a result to their physical capacity or their
mental capacity and I guess in terms of the takeaway for capability termination
it always comes down to – Is the employee in a situation where they can no longer
medically perform the inherent requirements of their role? So that requires going through a process you know understanding understanding their
current capacity seeking medical information as to where they can return
to their role what reasonable accommodations can be made to that role
and if in view of all those types of things and among any other areas they
can’t do their role then you’re potentially looking at you know position
where they can no longer actually perform the inherent requirements of their role so not to do with performance conduct it’s purely to do with capacity Yeah so the physical ability just sort of to do it I suppose Or mental Yeah okay good point good point I suppose that’s across every industry
too so I mean is is there a process on that one for employers? or does it vary
depending on the industry depending on the job? Yeah look there is a process and
it does depend on the job obviously if you’re in a more blue-collar industry or a
labour industry you know capability processes or termination would be more common there in terms of the process into I guess to
give a brief overview of that you’d be looking for I guess periods of absence
not necessarily short term but long term absences as a trigger the employee
providing medical information that they you know they’ll be away for a certain
period of time now these can be work-related and also non work-related
injuries now when they work-related injuries you also have to factor in
potential workers compensation into that so it can get very complex and at the
end of the day you know ultimately decisions should be made on whether the
employee can return to work or not and that’s based on length of absence
reasonable accommodations to the role or you know medical evidence indicating
that Yes that’s quite a lot to our to consider there just for that one piece
isn’t there you can see why a lot of people get unfair dismissal claims on
that one Yes definitely Shifting gears slightly performance management
termination is a term that we flagged earlier now I suppose to put it in-eloquently it would be something like “managing someone out” I’m sure is that
common? Do you see people trying to do that? or Yeah most definitely and it’s
one used I guess very commonly where an employer is in a situation with an
employee where there’s no real issues such as misconduct or anything where
they can really look and is this employee is just genuinely performing
poorly not meeting the requirements of their role so yeah and that’s I guess
where that term managing the employee comes from it tends to be obviously it’s
quite risky because it’s coming to a lot of unfair dismissal claims is it a long
process? Yes it can be I guess as far as from an unfair dismissal perspective and
in terms of looking at previous matters the Commission’s made a determination on
what they look at is has the employer gone through a procedural fairness and
as part of procedural fairness have they had a discussion with the employee and
communicated what those expectations are are those expectations specific
measurable achievable reliable and timely? So in other words is it fair? Can
the employer actually do it? Have they given reasonable training and support to
meet those requirements? And they have have they been given enough time to you
know meet those requirements in other words? So in terms of what we advise we
generally look at… again it’s a case by case basis but potentially looking for
about three months but yeah you know it definitely there is a specific
requirement there Yeah so it’s quite lengthy and I suppose one to tread carefully on Now, terminating an employee often often goes
awry and these things happen which is why you guys are so busy sometimes
employees what’s called abandonment of employment I understand sometimes
employees just don’t make it clear whether they’re coming back or talk to us a bit about that one what what does that mean? What does abandonment of employment mean? Abandonment of employment is basically when the employee quite literally disappears
so you know if they’re required to come to work on Monday and they haven’t come
to work you’ve tried contacting them send them emails contact the emergency
contacts you may have on file you’ve heard nothing come Tuesday comes
Wednesday you still haven’t heard anything then you’re in a potential situation
where the employee has abandoned their role so what it essentially means is that
the employee hasn’t come to work you know they’re not returning to work
you’ve tried contacting them they haven’t contacted you back and you’re in
a situation where well you know – Where is this individual? So at that point what we
advise is that you know if you’ve made it numerous attempts to contact
this person you go through that abandonment of employment process in writing to
let the employee know that they’ve got a specific time within which to either
return to work or you know to contact them and if they fail to do so that will
result in termination of their employment by way of abandonment So it’s about making it clear that that something needs to be either said or or
confirmed here with unfair dismissals it comes down to a lot of the
evidence you’ve got so even in abandonment of employment employers
should be documenting whether they make contact and who they contacted is that
fair? or or is it more about just trying to get this employee to let you know? No, that’s 100% correct you know a lot of the I guess defenses for unfair
dismissal are very process driven and it all comes down to what you can and can’t
prove so if you’ve made numerous contacts document that on file when you
sent when we always advise to send out a notification of abandonment of employment
prior to termination so you have written notice to the employee to provide them
as much you know opportunity as possible to return to work prior to making a
final decision so you know documentation is key in terms of setting yourself up
for success when it comes to an unfair dismissal claim so I suppose that flows
quite nicely onto to the next question I was going to put to you we always like
to finish with a bit of a top tip for employers I think you just nailed it
documentation is key surely that’s got to be up there but but what else should
employers be doing? Is there something that every time they terminate an employee they should be being careful about? Yeah I think it’s about
documentation but also ensuring that the documentation you have from a process
and policy perspective is correct and provided to employees so that they
are aware it’s at the end of the day to rely on these policies and procedures
firstly they need to be correct and fair but also employees need to be aware of
the standards and expectations in the workplace and if all that you know if
you’ve dotted your I’s and crossed your T’s when you do come to rely on them you’re
in the best position possible to apply it and when you do apply it apply
consistently across the board to all employees and that essentially you know
going back to what I said earlier sets them up for success when it comes to a claim so
Tariq make sure make sure the policies and procedures in place you’re across it
and employees know how to do it as well exactly right
spot-on thanks for your time My pleasure Well there’s the essentials as Tariq said
every termination is different but ultimately it comes down to the process
and policies your business is using and how you manage employees on the way out
the door as always Employsure’s here to assist so
give us a call on 1300 651 415 for any advice in terminating
employees or responding to an unfair dismissal claim with this being the last
episode of our Employsure Essentials podcast series I hope you’ve enjoyed it
and certainly learned some things along the way
stay tuned to it we’ll have a new podcast series coming in 2018