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Common Misconceptions in Employment Law

  • March 16, 2021
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1 – “My employee cannot bring an unfair dismissal claim because I gave them verbal warnings.”

Although formal warnings are an important procedure to go through prior to terminating an employee, there are several points to be aware of.

Verbal warnings can be sufficient. However, in our experience, such warnings are not worth the paper they’re written on! First, if warnings are given verbally, they may be difficult to prove during unfair dismissal proceedings if the employee later denies that the warnings were ever given. Additionally, warnings should ideally be provided in writing upon completion of an in-person performance management meeting and should be signed by the employee.  Employers should ensure the employee has been provided with 48 hours’ notice of the meeting and be given the opportunity to bring a support person. Employers should also clearly explain that continued failure to uphold the conduct or standard of performance required for the employee’s role may result in dismissal.

2 – “As long as I give the employee adequate notice of termination, I do not have to give them an opportunity to respond to my reason for dismissing them”

According to the Fair Work Act and Fair Work Commission decisions, you MUST notify your employee of the reason for their potential dismissal and give them a chance to respond BEFORE the decision to terminate is made.

The Fair Work Act states that the Fair Work Commission will take a failure to provide this opportunity to the employee into consideration in determining whether the dismissal was harsh, unjust or unreasonable (contributing to it being an unfair dismissal).

3 – “If, during a performance management or warning meeting, the employee becomes upsets and quits, this constitutes a resignation.”

The Fair Work Commission has made the point that, where an employee resigns ‘in the heat of the moment’ or under ‘extreme pressure,’ special circumstances may arise that make it unreasonable for an employer to not allow the employee to continue working. In a 2018 case involving Bupa Aged Care, which was appealed to the Full Bench, upon the case being referred for re-hearing it was held that resignations ‘in the heat of the moment,’ where it is unreasonable for an employer to consider the resignation to be a genuine one, can ultimately amount to a dismissal by the employer. Factors in this matter which contributed toward it being unreasonable involved the employee scribbling out a notice period in her letter and stating she was instead resigning immediately, the employee crying and being distressed and describing herself as being in ‘panic mode’. A letter sent by the employer to the employee the day after the purported resignation, attempting to accept the resignation, was not sufficient.

If you need help with ending an employment relationship or would like advice on whether your termination was unfair, contact the team at Kingston Lawyers.

Written by Rebecca Cleary