Employment Disputes

Underperformance is when an employee is not carrying out their role in a manner that is acceptable or is behaving inappropriately. Effective performance management is essential to the success of any workplace. This can be achieved through both formal and informal processes. Employers should ensure that all performance management of staff is undertaken in a procedurally fair and transparent manner, that detailed written records are kept and that an employee is given a genuine opportunity to respond and to improve.

There is however a vast difference between underperformance and serious misconduct. Unfortunately, many employers readily take drastic action, including terminating employment, in circumstances where a written warning would have been the appropriate course of action. This often results in an employee bringing an application in the Fair Work Commission which can lead to drawn out and expensive litigation.

Our team is skilled in providing advice on effective performance management to employers and in responding to performance management action taken against an employee.

Redundancy is when an employer no longer requires the role that an employee has been performing to be performed. Employers who do not carefully undertake the redundancy process or who use redundancy as a means to dismiss an employee, risk that the redundancy will not be a ‘genuine redundancy’.

There are three limbs to a genuine redundancy:

1. The employer no longer requires the person’s job to be performed by any person because of changes in the operational requirements of the business;
2. The employer complies with any obligation in a modern award or enterprise agreement that applies to the employee to consult about redundancy; and
3. Within the employer’s business (or related entities), there is no role for which it would be reasonable in all the circumstances for the employee to be offered a redeployment opportunity.

We can assist you to manage redundancy, including ensuring the appropriate process has been followed and the employee has been provided with the correct notice, redundancy pay and leave entitlements.

Unfair dismissal is when an employee is dismissed from their employment in a harsh, unjust or unreasonable manner. Employees seeking an unfair dismissal remedy must file an application in the Fair Work Commission within 21 days of the dismissal taking effect.

The general protections prohibit an employer from taking adverse action against an employee because of a ‘protected reason’ such as the employee exercising or refusing to exercise a workplace right.

An employer takes adverse action against an employee by undertaking any of the following:

1. Dismissing the employee;
2. Injuring the employee in the course of their employment (such as reducing the employee’s work hours or number of shifts);
3. Altering the employee’s position by way of a suspension or demotion;
4. Discriminating against the employee.

The general protections are also enlivened if an employer threatens to take or organises adverse action to be taken.

Unfair dismissal and general protections applications can be difficult to navigate and it is important to have an experienced solicitor to provide you with legal advice.

We employ a pragmatic and commercially minded approach to litigating employment disputes and can assist you in resolving these matters.