In circumstances where an employee has been wrongfully dismissed on account of an employer’s failure to provide reasonable notice, damages are generally limited to the gross amount (including superannuation) that would have been earned during the period of reasonable notice had the contract continued.
The bottom line: The terms of a contract of employment do not override the minimum provisions under the National Employment Standards where the contract is less beneficial than the Standards. Case 2; Managing Dismissals The decision to dismiss an employee is an area of the employment relationship that requires an understanding of a wide range of legislative and other obligations of an employer. The decision is also a significant one in terms of the effect on the employee and the business. Not surprisingly, a significant amount of resources, time and effort needs to be devoted to the associated decisions and processes. Knowing the legal risks and obligations involved is essential. CHECKLIST FOR MANAGING DISMISSALS Can you establish that you have a sound, defensible reason related to the employee's conduct or capacity or due to redundancy to dismiss the employee, unrelated to any discriminatory attribute?
Do you need to suspend the employee if the possible reason may amount to serious misconduct?
Have you conducted a thorough investigation (where appropriate and necessary) into the grounds for the dismissal, by considering and adequately weighing up all relevant evidence?
Have you given the employee an opportunity to respond to the grounds for the possible dismissal, including giving the employee sufficient detail of the grounds?
If the grounds for dismissal are not serious misconduct, have there been previous recorded instances of the same or similar behaviour or performance by the employee and has the employee received warnings for these?
Were you required to enable the employee to have a support person at the meeting to consider dismissal and did you do so?
Have you identified and followed all policies and procedures relating to dismissal that apply to your workplace?
Have you considered any matters relevant to the decision, including the employee's length of service, employment record and relevant personal circumstances, before making any decision to dismiss?
Have you notified the employee of the reason for dismissal and that the employment has been terminated, identifying the effective date, in writing?
Have you paid the employee all appropriate entitlements on termination, including entitlements in industrial instruments, policies and any written contract of employment?
Do you need to take steps to protect the organisation's confidential information or property and enforce any restraint of trade?
Have you properly considered the period of notice the employee is entitled to and any pre- or postemployment representations that may have been made to the employee?
Have you considered if it is a special type of case, e.g. an absent worker due to illness or injury, short or long term?
April 2019 www.tha.asn.au
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