Before You Dismiss an Employee: Unfair Dismissal And Other Key Risks For Employers
- Jun 19
- 7 min read
When an employee isn't performing, behaving poorly, breaching policies, or causing disruption in the workplace, it's understandable that the comment we hear most from business owners is:
“I just want them gone.”
That reaction makes complete sense, especially when the issue has been building for a while and it feels like you're being taken for a ride.
But before you jump in and move straight to dismissal, it's worth asking one important question:
If this decision is challenged later, can we clearly explain what we did, why we did it, and how we gave the employee a fair chance to respond?
That's often where employers get caught out. Not because they had no reason to act, but because the process was rushed, poorly documented, inconsistent, or too heavily influenced by frustration.
A dismissal can lead to several different types of claims. The key for employers is not to become fearful of making decisions, but to follow a process and make sure the decision is lawful, fair, evidence-based and well documented.
A Claim Doesn't Always Mean You Did The Wrong Thing
Employees can make claims even where an employer has acted reasonably, and it's important to remember that receiving a claim doesn't automatically mean the business is at fault.
It does however mean that you need to defend your actions, and that's why the quality of your process matters.
That means your notes, letters, meeting records, emails, witness information, timing, and reasoning may all be looked at. The question becomes whether the business can show that the decision was based on a valid reason and handled in a reasonable way.
The importance of 'Procedural Fairness' can't be stressed enough; it's where so many dismissals fall down that would otherwise have been rightly justified.
This article we posted about 'Unfair Dismissal' looks at some of the common mistakes around procedural fairness that are well worth keeping in mind when you're thinking 'I just want them gone!'
Unfair Dismissal Claims
An unfair dismissal claim is usually about whether the dismissal was 'harsh, unjust or unreasonable'.
For employers, this means the focus isn't just on whether you had a reason to dismiss. It's also about whether the employee was told the reason, given a chance to respond, and whether the outcome was reasonable in the circumstances.
This is where many businesses create risk for themselves without realising it.
For example, an employer may have genuine concerns about repeated lateness, poor work quality, misconduct, inappropriate behaviour, or failure to follow instructions. But if they jump straight to termination without putting the concerns to the employee first, the process may become vulnerable.
The Fair Work Commission has also made clear that an opportunity to respond must be genuine. It shouldn't just be a “tick the box” meeting where the decision has already been made.
How you can reduce the risk
Before dismissing, make sure you can show:
the employee was given sufficient notice of the meeting (ideally 24hrs if possible);
they were given the opportunity to bring a support person to the meeting;
the issue was clearly identified;
the employee was told the concern in enough detail;
the employee had a genuine opportunity to respond;
their response was considered before a final decision was made;
the outcome was proportionate; and
the decision was documented.
For performance issues, employers should be particularly careful about whether the employee has been given clear expectations, feedback, support, and a reasonable opportunity to improve.
For misconduct, the process may move more quickly, but fairness still matters. Even where the conduct appears serious, the employee should usually be given a chance to respond before a final decision is made.
General protections claims
General protections claims can be more complex and often carry higher risk for employers.
These claims aren't just about whether a dismissal process was fair; they focus on whether the 'why' was lawful.
Employees have general protections under the Fair Work Act designed to safeguard them from adverse actions taken by employers.
The general protections cover several important areas:
Workplace Rights: Employees have the right to exercise their workplace rights without fear of retaliation. This includes making complaints or inquiries about workplace conditions.
Discrimination: Employees are protected from being treated unfairly based on specific attributes such as race, gender, age, disability, and more.
Industrial Activities: Employees cannot be dismissed or discriminated against for participating in lawful industrial activities, such as union membership.
Adverse actions refer to negative actions taken by an employer against an employee, which can include:
Dismissal
Disciplinary action
Demotion or reduction in pay
Altering an employee's position to their detriment
Discrimination based on personal attributes
For employers, the risk often sits in the timing and the language used.
For example:
An employee raises a pay concern, then is performance managed shortly after.
An employee takes personal leave, then their reliability is questioned.
An employee makes a complaint about a manager, then is dismissed.
An employee raises a safety issue, then is treated as difficult.
An employee asks about entitlements, then their shifts are reduced.
The employer may have a legitimate reason for acting, but if the documents or timing suggest the protected activity influenced the decision, the business may be exposed.
How you can reduce the risk
Be very clear about the real reason for the action.
The reason should be tied to conduct, performance, capacity, operational requirements, or another lawful basis. Avoid loose comments that make the issue sound personal or retaliatory.
The more clearly you can separate the workplace issue from any protected activity, the stronger your position will usually be.
This is also why contemporaneous documentation matters. Notes created at the time are generally more useful than trying to reconstruct your reasoning weeks or months later.
Discrimination, Bullying or Harassment Claims
A dismissal, warning, investigation or performance management process may also trigger allegations of discrimination, bullying or harassment.
Discrimination risk may arise where an employee argues they were treated unfavourably because of a protected attribute, such as disability, pregnancy, age, sex, race, family or carer responsibilities, or another protected ground.
Bullying allegations can also arise during performance management or disciplinary processes. However, reasonable management action carried out in a reasonable way is not workplace bullying. This can include managing poor performance, taking disciplinary action, and directing how work is carried out.
That distinction is important - you are allowed to manage employees; you are allowed to give feedback; you are allowed to investigate concerns; you are allowed to issue warnings; you are allowed to dismiss where dismissal is justified.
But what matters is the way it's done.
How you can reduce the risk
Keep the process calm, factual and respectful, and focus on observable behaviour, not character judgments.
Instead of simply saying “You are unreliable”, say “You were rostered to start at 8:30am on Monday, Tuesday and Thursday. On each day, you arrived after 9:00am and didn't notify your manager before your start time.”
That gives the employee something clear to respond to, and also shows the issue is about conduct, not personality.
Also consider whether any health issue, injury, disability, family responsibility or complaint history needs to be factored into the process. That doesn't mean you cannot proceed, it means you may need to proceed more carefully.
Workers Compensation Psychological Injury Claims
Sometimes, an employee may lodge a workers compensation claim for psychological injury during or after a performance, disciplinary or dismissal process.
This can be stressful for employers, particularly where the business believes it has acted reasonably.
Psychological injury claims may include conditions such as anxiety, depression or PTSD, and depending on the relevant scheme, workers compensation may be available where work is a significant contributing factor.
However, many workers compensation schemes recognise that employers must be able to take reasonable management action and note that a mental injury doesn't necessarily qualify where it is due to management action taken on reasonable grounds and in a reasonable manner.
How you can reduce the risk
As always, good process is your best protection.
That means:
giving clear notice of serious meetings where appropriate;
explaining the purpose of the meeting;
allowing a support person;
avoiding aggressive or humiliating language;
pacing the process appropriately;
keeping written records;
considering medical information if provided;
offering support where appropriate; and
making sure managers don't act out of frustration.
Reasonable management action should be considered, proportionate and well documented.
A Practical Checklist Before Taking The Dismissal Route
Before ending employment, go through the following questions:
What is the actual issue - conduct, performance, capacity, redundancy, or something else?
What evidence do we have?
Have we clearly put the concern to the employee?
Have we given them a genuine chance to respond?
Have we considered their response before deciding?
Is dismissal proportionate in the circumstances?
Have we treated similar issues consistently?
Are there any protected factors involved, such as leave, injury, illness, complaint-making, pregnancy, disability or family responsibilities?
Are the emails, notes and letters professional and factual?
Would we be comfortable explaining this process to the Fair Work Commission or another external body?
If the answer to any of these questions is unclear, give it a second thought before going ahead.
Final thoughts on Dismissing An Employee
Sometimes dismissal is the right outcome, sometimes a warning is appropriate, sometimes a performance improvement process is needed, and sometimes the business simply cannot continue with the employment relationship.
Whichever route is most appropriate for your business, the safest way to tackle it is by following a solid process so that it doesn't come back to bite you later.
If it's time for one of your team to 'Step Up...or Step Out', get in touch and we can take you through the process.
Book a free discovery call today, and let’s take the HR off your plate so you can focus on growing your business.
Need help? Contact us today - sandra@hrconsultingtas.com.au or 0408 408 225
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