Help! I am “unfairly” being sued by a former employee

07 June 2017

It is not always the “big bad” employer that has the done the wrong thing – sometimes, employees who have had their employment terminated can sue their former employer for unfair dismissal, even if the dismissal was justifiable and “fair”. 

What is unfair dismissal?

The dismissal of an employee may be “unfair” if it is harsh, unjust or unreasonable and/or was not due to a genuine redundancy. 

How is an unfair dismissal complaint dealt with?

You will be notified by the Fair Work Commission (FWC) if a complaint has been made against you and a copy of the complaint will be provided to you. 

You will need to respond in writing to the allegations against you.  When preparing the response it is important that you gather information including any formal correspondence, emails, documents of meetings and conversations with your former employee.  This will help you tell your side of the story. 

The complaint will then proceed to a conciliation conference. This is an informal and private conference which occurs over the phone with a conciliator from the FWC. The conciliator will try to help you and your former employee come to an agreed outcome. 

Most unfair dismissal matters settle at the conciliation stage. If they do not resolve, then the employee has the option to bring court proceedings against you. 

What can I do to avoid an unfair dismissal complaint?

The best way to avoid an unfair dismissal complaint is to document your policies and procedures, be fair when performance managing employees and only terminate an employee when it is clearly appropriate and reasonable in the circumstances to do so.

If you have received an unfair dismissal complaint, or need assistance with your policies and procedures, please contact a member of our Employment Law team:

John Sneddon, Partner: (07) 3307 4504 or jnseddon@shandtaylor.com.au

Kimberley Forman, Senior Associate: (07) 3307 4523 or kforman@shandtaylor.com.au 

Ruby Nielsen, Lawyer: (07) 3307 4551 or rnielsen@shandtaylor.com.au

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