Your boss has just fired you – was the reason for your employment being terminated by your employer fair?
An employer cannot dismiss an employee without a valid reason. The reason must be sound and well founded, not fickle, fanciful or prejudiced.
If the reason your employer dismissed you is valid and your employer undertook a fair and reasonable process in managing your dismissal, by (for example) notifying you of the reason for your dismissal and giving you an opportunity to respond to the reason, then this may amount to your dismissal being fair. However, no case should be determined without considering all of the facts and circumstances relating to the matter. If you would like to discuss your situation with an unfair dismissal expert, contact Anderson Gray Lawyers today and tell us your story. We are here to help.
A valid reason for dismissal may relate to an employee’s conduct, capacity, performance or redundancy.
Conduct of an employee that may amount to misconduct, is behaviour of an employee that is not appropriate at the workplace or in breach of the employee’s contract of employment. The following are a few examples of what may constitute misconduct:
- breaching a company policy;
- engaging in an activity that poses a serious risk to the health and safety of a person or to the reputation or viability of the business;
- being dishonest;
- having a poor attitude and engaging in poor behaviour towards your employer and/or other employees whilst at work;
- failure to follow a lawful and reasonable direction given by your employer;
- being intoxicated at work;
- stealing; or
- fighting or assaulting another person at work.
However, each individual circumstance is different. It depends on the nature of the conduct in the particular circumstances and the employee’s history as to whether the conduct in question is a valid reason to terminate the employee’s employment.
Just because you have engaged in the above conduct, does not always mean that dismissal was the right answer or that the dismissal was fair.
Capacity refers to the employee’s ability to do the job required by their employer and the work they were employed to do, that is, the ‘inherent requirements’ of their position of employment.
If you are unable to perform the inherent requirements of your role, then that may be a valid reason to terminate your employment.
Incapacity may be due to a medical reason and the medical reason means that you are unable to perform the requirements of your role. However, the Fair Work Act does provide protections for employees. Your employer cannot dismiss you if you have been temporarily absent from work due to an illness or injury for up to a three month period (or up to three months in total over a 12 month period) or if you are absent on paid personal/carer’s leave for the duration of your absence from work.
This area of the law is complex. If you have been dismissed for incapacity, please contact Anderson Gray Lawyers to discuss your situation and if you may have the grounds to lodge a claim.
An employee may be dismissed from their job for poor performance. Generally, poor performance is when an employee has not been performing their role to a satisfactory standard.
If you have been under-performing in your role, this may be a valid reason for dismissal. Nevertheless, you ought to have been warned about your poor performance by your employer and be notified of the need for you to improve your performance prior to your dismissal. Generally, when determining an application for unfair dismissal, the Fair Work Commission likes to see that you have been given a period of time in which to improve your performance. If you have not been warned that your performance at work is sub-standard and given a chance to improve your performance, then this may not be a valid or fair reason for terminating your employment.
If your position of employment was made redundant, this will be a fair reason if the redundancy was ‘genuine’.
The Fair Work Act provides that a redundancy is a genuine redundancy if:
- your employer no longer requires your job to be performed by anyone due to operational changes in your workplace;
- your employer consulted with you about the proposed redundancy. That is, discussed with you the proposed change (i.e. making your position of employment redundant) and if there were any alternative options or ways to minimise the adverse effect of this change on you; and
- it was not possible to re-deploy you into another job in the business or an associated entity of your employer.
Despite the reason for dismissal, it is important to note that the process adopted by your employer in managing your employment must also be fair. That is, you must be notified of the reason for your dismissal, given an opportunity to respond, permitted a support person (if you request one) to assist you at any meetings relating to your dismissal and warned about your poor performance (if your dismissal relates to your performance).
Anderson Gray Lawyers are unfair dismissal experts and we are here to help. If you think that the reason you were dismissed was not fair – do not delay, contact us immediately! Remember that you have 21 days in which to lodge an application for unfair dismissal with the Fair Work Commission from the date your dismissal took effect.