An employer is entitled to dismiss an employee if the employer gives the employee a certain amount of notice. You must not terminate a full-time employment unless you have given written notice of your dismissal. An exception to this rule is if there is a case of serious misconduct.
Employees can be dismissed as a result of misconduct if their performance at work is unsatisfactory. However, depending on the circumstances, the employees should be given the opportunity to explain themselves and receive feedback, and be offered training or time to improve their performance.
An employer has the right to dismiss an employee without any notice if the employee has:
Failed to carry out a reasonable direction, or
Behaved so badly that instant dismissal is justified.
In most cases, the employer needs to properly investigate the employee’s conduct and ensure they receive legal advice prior to dismissing the employee to avoid claims for unfair dismissal.
Unfair dismissal claims can be made on the following grounds:
• Invalid reason for dismissal,
• Unpaid wages,
• No adequate warning,
• Not being given the opportunity to answer to a warning,
• Problematic working environments, or
• Union and other legal actions.
A DISMISSAL IS ‘UNFAIR’ IF IT IS ‘HARSH, UNJUST, OR UNREASONABLE’.
A claim for unfair dismissal is made by applying to an independent body, such as the Fair Work Commission. If your business receives such a claim, there are certain factors that may help you to defend your business: if you have less than fifteen employees, it was a genuine redundancy and all the rules have been complied with.
Constructive dismissal refers to the situation where an employee feels like he or she had no choice but to resign as a result of being treated so badly that it is no longer possible to continue working without incurring further mental or physical harm. The fact that there has been a significant change to the employee’s circumstances at work may qualify as a case of constructive dismissal. Both these situations may result in a claim for unfair dismissal.
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