Do we have to give a reason for dismissal?

Q&A

Do we have to give a reason for dismissal?

When terminating workers during the 'minimum employment period', it is advisable, but not obligatory, to provide reasons for the dismissal.

Are we required to give an employee a reason for dismissal if it falls within the minimum employment period?

This question was recently sent to our Ask an Expert service.

Q  If we terminate an employee within the 'minimum employment period', which in this case equates with the probation period, are we obligated to give a reason for the dismissal?   If not, is it advisable to do so anyway?

 
A An employer is not obliged to give reasons for the purposes of unfair dismissal law as the employee has not been employed in excess of the minimum employment period and, consequently, does not have access to the unfair dismissal jurisdiction.

However, failure to give a reason may encourage an employee to seek other available remedies relating to their dismissal. This may include claiming adverse action under the general protections provisions of the Fair Work Act (FWAct) although, depending on the reasons for dismissal, the employee could also be eligible to make claims in other federal, state or territory jurisdictions, such as an anti-discrimination tribunal.
 
The general protections provisions of the FWAct are intended to protect an employee from adverse action (which include termination by the employer) relating to: 
  • A person’s “workplace rights”, i.e. entitled to benefits under an award/agreement or an Act, including workplace health and safety laws, undertaking proceedings against the employer;
  • Freedom of association (including the right to join, or be represented or not represented by industrial associations; or to engage in lawful “industrial activities”);
  • A person from workplace discrimination, or
  • Provide remedies where the protections have been contravened.
 
Other protections include an employer must not dismiss an employee who is temporarily absent from work due to illness or injury. For example, if the employee was dismissed because of a temporary absence from work due to illness or injury, the FWAct provides protection from dismissal for the first three months of such an absence. This protection is provided under general protections provisions. If the employee is pregnant, they may suspect their pregnancy was the reason for their dismissal.
 
Another issue for employers with respect to general protections applications is reverse onus of proof. The reverse onus of proof is significant in that the employer must, by leading evidence, exclude the possibility the termination happened because the employee had a workplace right or exercised a workplace right.
 
A person may make application to the Fair Work Commission (FWC) claiming a breach of the general protections provisions. If mediation before the FWC does not successfully resolve the matter, an application can be made to the Federal Circuit Court or the Federal Court.
 
Because of the potential consequences for the employer resulting from a general protections claim, it would be prudent to detail the reasons for a dismissal to the employee, based on objective criteria.


Need more help with people management?

Australian Business Consulting and Solutions has a dedicated team of HR experts who can assist you with your specific people management issues and problems. If you would like a free and obligation-free initial assessment of what you require in terms of professional assistance, you can obtain more information from our website.
Post details