The Fair Work Act provides that a person must not take ‘adverse action’ against another because the first person has a ‘workplace right’. The ‘adverse action’, in these cases is the dismissal.
The coverage of the definition of a ‘workplace right’ is extensive but includes things like:
• the ability to take personal/carer’s leave
• make a complaint or enquiry (for example a wages or safety complaint)
• has a change in their capacity because of an injury
• right to be part of a union or participate in lawful industrial activities
• not to be treated less favourably because of a discriminatory attribute.
On numerous occasions we have seen members get a GP claim when they terminate a worker during their probation period; even a prospective employee has attempted a claim.
Employers typically see the probation period as a time when they can dismiss a worker with limited reasons, no process and no requirement to issue warnings – because the worker cannot make an unfair dismissal claim.
This probation period protection has resulted in many employers giving ‘general’ reasons for termination e.g. phrases like; “not the right fit” or “just not meeting our expectations”.
While there is no requirement at law to give reasons for termination during the employee’s minimum period of employment, a failure to give a reason may encourage an employee to seek out an avenue for a GP claim.
On this basis the Workplace Relations team advises that reasons should be given. Cite the examples of the performance or conduct you find unacceptable as the reasons for termination.
General Protections claims can allege the dismissal was for a range of unlawful reasons. It is important that the business:
For example, a poor performing office worker has just informed the business that they have a medical condition. The business was going to terminate this worker, but with this revelation there is now a prospect that a GP claim might have to be defended. This is not to say that the employer cannot dismiss the worker, but the additional processes should be deployed to show performance as the reasons for termination, not the revelation of the medical condition.
Even in probation periods be specific in your termination letter as to the reason for dismissal i.e. your employment is being terminated on the basis of poor performance regarding (specific events/issues).
If you need support or have any queries, contact our Workplace Relations Hotline on 1300 889 198.
Not a member, join Master Electricians today to have unlimited access to our Hotline.