What Defines Unfair Dismissal in the Medical Sector?

‘Unfair dismissal’ is a term commonly heard in employment circles, but what exactly falls under this category? As an employer, particularly within the medical sector, understanding your legal position and the necessary steps to ensure fair and reasonable dismissals is crucial.

Was the Dismissal Unjust or Unreasonable?

All dismissals must adhere to the guidelines outlined in the Fair Work Act to be considered fair and reasonable. A legal expert specialising in employment law emphasises the complexity of employment regulations and the potential pitfalls for well-intentioned employers. Seeking advice from a legal professional, such as an employment lawyer, is strongly advised when considering employee dismissal.

Criteria for Unfair Dismissal

“If aspects of the dismissal were deemed harsh, unjust, or unreasonable, it raises the possibility of unfair dismissal,” notes the legal expert. Employers must ensure a valid reason for dismissal exists and that the employee is treated fairly throughout the process.

Employees may claim unfair dismissal if:

A valid reason related to conduct or capacity was not provided.

The employee was not informed of the reason and given an opportunity to respond.

They were denied the chance to have a support person present at meetings.

They were not cautioned about underperformance before dismissal (if related to performance).

However, it is typically not unfair dismissal if:

The employee is dismissed after receiving multiple written warnings.

The employee was given an opportunity to respond to allegations.

Resignation Due to Employer Conduct

Surprisingly, even resignation can lead to a claim of unfair dismissal if it stems from the employer’s conduct. A resignation prompted by circumstances leaving the employee no choice but to leave due to employer conduct is termed ‘constructive dismissal’.

Ensuring Fair and Reasonable Dismissals

Employers in the medical sector can take specific measures to handle dismissals fairly:

Establish Clear Workplace Policies: Outline acceptable conduct and disciplinary procedures. Adhering to these policies during dismissal proceedings demonstrates the company’s commitment to procedural fairness.

Conduct Performance Meetings: Address performance issues through regular meetings. Keep detailed records of these meetings, including the discussions held and their duration. These records serve as crucial evidence in any claims against the business.

Provide Opportunities to Respond: Avoid hasty decisions by providing employees with ample opportunity to respond to allegations. Ensure that meetings are thorough and allow employees to present their perspective on the matter.

Issue Written Warnings: When necessary, issue written warnings, particularly in cases of poor performance. Giving employees clear warnings provides them with the opportunity to improve before dismissal is considered.

By following these steps diligently, medical practices can minimise the risk of unfair dismissal claims and uphold fairness and transparency in their employment practices.

Redundancy vs. Dismissal

A genuine redundancy differs from dismissal. Under the Fair Work Act, a genuine redundancy occurs when:

The job is no longer necessary due to operational reasons.

The employee has been consulted.

Redeployment of the employee is not feasible.

Different Rules for Small Businesses

Small businesses with fewer than 15 employees must adhere to the small business fair dismissal code. Compliance with this code alleviates the need to prove that the dismissal was not harsh, unjust, or unreasonable.

Seeking Further Guidance

The content of this article is intended for general informational purposes only and should not be considered as legal advice. AusDoc does not guarantee the accuracy, reliability, or completeness of the information provided. Before making any decisions or taking action based on this article, it is advisable to conduct your own research and seek independent advice, including legal counsel, to determine its suitability for your specific circumstances.

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