Termination of employment – unfair dismissal or forced resignation?

Employment contracts may come to an end in a number of ways, initiated either by the employer or by the employee. For example, the parties may terminate the contract at any time by agreement, or by giving proper notice if the contract is for an indefinite period of time. In such cases, there is usually no dispute between the parties.

However, the situation may be different in cases where the employee claims unfair dismissal or forced resignation, or where employees are made redundant.

Talk to us today and our experts will advise you on your options regarding how to protect your rights or pursue remedies in cases of:

  • Dismissal;
  • Unfair dismissal;
  • Resignation; and
  • Redundancies.

What is the difference between dismissal and unfair dismissal?

Dismissal is where the employment has been terminated on the employer’s initiative or when an employee was forced to resign due to the employer’s conduct.

Employers may have valid reason to terminate the employment relationship with an employee. Such a reason may relate, for example, to an employee’s capacity to perform the agreed work or to a serious misconduct by the employee. However, the employer should have sufficient evidence in this regard, and if necessary, they must be able to prove that the work was not performed satisfactorily (objective test) or that the employee engaged in serious misconduct. It is not enough to claim that the employer thought they had valid reason for dismissal.

Unfair dismissal, on the other hand, can be claimed only if the dismissal was:

  • Harsh, unjust or unreasonable; and
  • Not consistent with the Small Business Fair Dismissal Code (in cases of employees of a small business); and
  • Not a case of genuine redundancy.

When deciding whether the dismissal was unfair, the following should be considered:

  • Length of the employment
  • Reason for the dismissal
  • Whether the employee was notified of that reason
  • Whether the employee was given an opportunity to respond
  • Whether the employee was warned about unsatisfactory performance
  • Size of the business

Are you considering dismissing one of your employees?

We will take you through the process and advise you whether there is a valid reason for the dismissal. We will make sure that you comply with all the rules so that your employee has no grounds to file an unfair dismissal claim or general protection claim.

Have you been forced to resign or unfairly dismissed?

Remember that strict time limits apply to make a claim against your employer. If you think you have been unfairly dismissed or forced to resign, do not delay in seeking legal advice. Our employment experts will assess your claim and recommend the best possible solution for you.

What else can we help you with?

Contact our team today to discuss how we can best help you. Elringtons will provide you with expert legal support in all areas of employment, for further information see:

  • Dismissal
  • Unfair dismissal
  • General protection
  • Resignation
  • Redundancies

We offer an initial consultation and review of your case for a flat rate fee. Contact us for more information.

e: info@elringtons.com.au | p: +61 2 6206 1300