Linq HR - Blogs (Information) #unfair dismissal

Possibly the Most Important Step in a Fair Dismissal: The Right to Respond

Fri, 06 Jun 2025 12:33:59 +1000

In Australian employment law, one of the most fundamental principles underpinning a fair dismissal process is the employee’s right to respond to allegations before any final decision to terminate their employment is made.

This principle is not only best practice for all supervisors and managers, it is enshrined in legislation. Section 387 of the Fair Work Act 2009 outlines the criteria for considering whether a dismissal was harsh, unjust or unreasonable, and central to this assessment is whether the employee was given an opportunity to respond to any reason related to their capacity or conduct that may justify dismissal (Fair Work Act 2009, s.387(c)).

Why the Right to Respond Matters

Giving an employee the chance to respond reflects the basic tenets of procedural fairness, also alternatively known as natural justice. It acknowledges the right of individuals to be heard and ensures decisions are made based on all relevant facts rather than assumptions or incomplete information. In cases involving conduct or performance concerns, it is possible that the employer has misunderstood the situation, or that mitigating circumstances exist which should be taken into account before deciding to end employment.

The Fair Work Commission (FWC) has for a long time reinforced the importance of this step. In Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage & Transport, the Full Bench stated, amongst other things, that procedural fairness requires that an employee be warned about unsatisfactory performance and given an opportunity to respond before dismissal (FWC, 2001).

Section 387 and Procedural Fairness

The Fair Work Act 2009 requires the FWC to consider several factors when determining whether a dismissal was fair, including:

- Whether there was a valid reason for the dismissal (s.387(a))

- Whether the employee was notified of that reason (s.387(b))

- Whether the employee was given an opportunity to respond (s.387(c))

Failure to provide an opportunity to respond may result in a dismissal being found unfair, even where a valid reason exists. The rationale is simple: if an employee is not allowed to tell their side of the story, the decision maker cannot be confident that the decision to dismiss is justified, appropriate, or proportionate.

A Practical and Ethical Imperative

From a practical management perspective, allowing the employee to respond may assist in resolving misunderstandings or lead to alternative outcomes such as training, redeployment, or performance improvement plans. Ethically, it demonstrates respect for the dignity of the individual and supports a culture of transparency and fairness in the workplace. Sometimes, even after a somewhat thorough investigation, new facts can emerge from the employee in question.

Even where the outcome may still be termination, the process followed can influence whether a dismissal is considered fair. There area a myriad number of cases where employees have clearly been terminated for valid reasons but have been reinstated or compensated due to simply not being asked to give their view before the termination decision was made and communicated.

Supervisors Fear of Hearing Something That Might Change the Outcome

In some cases, supervisors or managers hesitate to give an employee the opportunity to respond before termination out of fear that the employee might say something that complicates or challenges the decision. This fear, while understandable, is misplaced.

It is natural for an employee facing possible dismissal to present reasons why they believe termination is unwarranted. However, allowing the employee to respond does not mean the termination cannot still proceed. It simply means that all relevant information, especially any mitigating circumstance, has been fairly considered before the final decision is made.

The right to respond is far more than a procedural formality. It is a critical safeguard for both the employee and the employer. Respecting this right ensures the dismissal process is fair, legally sound, and defensible. It also serves as a final checkpoint to confirm that the decision to terminate is based on complete and accurate information.

📩 Contact Linq HR today to explore tailored support for your employee relations and workplace management.

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References

Fair Work Act 2009 (Cth), s.387

Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage & Transport [2001] AIRC 377.

Fair Work Commission (2024) Unfair dismissal – criteria for harshness. Available at: https://www.fwc.gov.au/benchbook/unfair-dismissals-benchbook

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Who is Ultimately Responsible for Employee Termination Decisions: Manager or HR Professional?

Tue, 24 Sep 2024 16:30:14 +1000

Employee termination is a sensitive and complex decision that can significantly impact the organisation. A key question arises: who is ultimately responsible for making this decision, a manager or a human resources (HR) professional? The answer lies in a collaborative approach that leverages both perspectives.

The Manager’s Role

Managers are often the first to recognise performance issues within their teams. Their daily involvement with employees gives them unique insights into individual behaviours, team dynamics, and the impact of an employee’s performance on the team and business. As they are directly responsible for team performance and achieving business goals, managers are essential in not only trying to correct performance issues but also identifying when a termination may be the necessary course of action.

Ultimately, while termination decisions may be made in consultation with HR, the final authority lies with the manager. This ensures that the decision aligns with the specific needs of the team and business. However, managers should not make these decisions in isolation and must ensure they fully understand legal requirements and organisational policies.

The HR Professional’s Role

HR professionals bring objectivity and expertise in good employee practices, company policy, legal compliance, and ethical standards. Their role is to ensure that any termination process is fair, balanced, lawful, and consistent with company values. HR professionals provide crucial guidance, helping managers navigate procedural requirements and minimise potential risks such as unfair dismissal claims or workplace disputes (Stone, 2017).

A Collaborative Approach

The best termination decisions are made through collaboration and when there has been ample opportunity for a proper evaluation. Managers should take the lead by identifying issues and initiating discussions, while HR assists evaluate the situation, ensuring all actions align with legal and organisational guidelines. While HR may be actively involved in the process and provide valuable advice, the ultimate decision to terminate still rests with the manager. The manager must also be present and preferably lead the termination decision. HR should not act in isolation.

So while HR’s expertise is vital to ensure fairness and compliance, the final decision making power on employee terminations lies with the employee’s manager.

Linq HR are Australian Employment and Workplace Specialists assisting organisations and employees be their best at work. Ph 1300234566.

Reference

Stone, R. J. (2017) Human Resource Management. 9th ed. Milton, Qld: John Wiley & Sons Australia.

What is the Role and Benefits of a Human Resources Broker?

Wed, 13 Mar 2024 10:15:17 +1100

A Human Resources Broker (HRB) acts as an intermediary between businesses seeking HR services and products, and the providers of these services and products. This role is particularly valuable in navigating the complex and diverse HR marketplace, ensuring that companies can access the best possible solutions tailored to their specific needs. Here are the key roles and benefits of a HR Broker:

Role of a HR Broker

Needs Assessment - They conduct thorough assessments of a company's HR needs, considering factors like company size, industry, existing HR practices, and strategic objectives. This ensures a deep understanding of what the business requires to enhance its HR functions.

Market Expertise - HR Brokers possess extensive knowledge of the HR services market, including the latest tools, technologies, and best practices. They are adept at identifying trends and innovations that can benefit their clients.

Provider Vetting - They undertake the vetting of potential HR service providers, evaluating their capabilities, track record, pricing, and compatibility with the client’s needs and organisational culture. This saves companies a significant amount of time and resources.

Customised Solutions - HR brokers tailor solutions to match the unique requirements of each business. They understand that no two companies are the same and that customisation is key to addressing specific challenges and goals.

Negotiation and Implementation Support - Brokers negotiate terms with service providers on behalf of their clients, often securing more favourable terms and pricing. They may also assist with the implementation process, ensuring a smooth transition and integration of new services or products.

Benefits of a HR Broker

Cost Efficiency - By leveraging their knowledge and relationships, HR Brokers can secure cost-effective solutions for businesses, often negotiating better rates than companies could achieve on their own.

Time Savings - Outsourcing the search and vetting process to a HR Broker frees up company resources and allows businesses to focus on their core activities, rather than spending time navigating the vast HR services market.

Access to Expertise - Brokers provide access to a wider range of expertise and innovative solutions that a company might not have been aware of or had access to on its own.

Risk Mitigation - Through thorough vetting and due diligence, HR Brokers reduce the risk associated with selecting an unsuitable HR service provider. They ensure that providers are reputable, compliant with relevant legislation, and capable of delivering high-quality services.

Strategic Partnership - A HR Broker can become a strategic partner, offering ongoing advice and support to ensure the HR services and products continue to meet the evolving needs of the business.

Enhanced Flexibility - Companies can benefit from more flexible HR solutions that can be scaled up or down as needed, thanks to the broker's understanding of various service providers' offerings.

A HR Broker plays a pivotal role in enhancing a company's HR functions by providing expert advice, access to quality services and products, and tailored solutions that meet specific business needs. This partnership can lead to significant improvements in efficiency, performance, and employee satisfaction.

Choosing Linq HR, Australia's first HR Broker, offers businesses the advantages of pioneering expertise, an established provider network, a reputation for trust and reliability, leadership in innovation, and a deep commitment to understanding and meeting the needs of Australian businesses. These benefits collectively ensure that clients receive unparalleled HR support that is tailored, efficient, and compliant with Australian standards.

For further information call 1300234566.

Insights into using Australian Employment Lawyers

Tue, 06 Apr 2021 16:00:00 +1000

Employment Lawyers specialise in providing advice on employment and workplace matters.

They can work for companies, governments, unions, employees and contractors.

For companies they often assist in developing employee contracts and agreements, defending employee unfair dismissal and discrimination claims, prevention of underpayments, union defence, HR policies and practices, and Award interpretation.

They can assist with workplace legislation such as The Fair Work Act, National Employment Standards, State and Federal discrimination and Disability laws, Workplace Health and Safety, and Workplace gender equality.

They can represent you at a number of levels including Tribunals, and State and Federal Courts.

Employment Law Barristers can assist Employment Lawyers with more complex legal cases.

Effective Employment Lawyers have the ability to develop a clear understanding of your employment issue and support you towards the best possible outcome.

Cost between lawyers can vary so it is important to find one which best fits your budget and which has the right level of expertise for your matter.

If your looking for the right Employment Lawyer for your company then Linq HR can help. Call 1300234566.

Resolving Employee Unfair Dismissal Claims

Fri, 19 Feb 2021 16:57:00 +1100

Certain people that worked for your business could claim unfair dismissal believing they have possibly been terminated in a harsh, unjust, or unreasonable manner.

Australian laws relating to unfair dismissal are constantly evolving, complex and time consuming to understand and follow.

So it may be necessary to seek the assistance of a Lawyer or Paid Agent skilled in unfair dismissal defence.

Early assistance can help you understand your company's legal position and recommend a path towards resolution.

The best way to resolve unfair dismissal claims is through resolution together with the former employee but this is not always successful.

The next step could involve a formal tribunal hearing and decision.

If you need assistance finding the right representation to help you defend an unfair dismissal claim against your company then Linq HR can help. Call us at 130234566.