Keep Records
Keep records of all relevant documents related to your potential dismissal. These documents might come in handy if you are ultimately dismissed and a claim needs to commence.
After you're dismissed, it will be more difficult to access these documents given you'll be locked out of the company's emails and other systems.
Put Forward Your Case
Before a company dismisses an employee, it is normal for the company to give the employee an opportunity to respond to any allegations, including regarding misconduct, performance or incapacity to do the job. If this doesn’t occur, then it could contravene the unfair dismissal rules.
You should ensure that you put your case to the company properly. This ensures they have all the information needed to make a decision about whether to dismiss or not.
You should review the company's policies, in relation to dismissal, to find out what process they have.
Be Careful When Signing Documents
Sometimes when employees are on the verge of being dismissed, a company may provide them with a deed of settlement. This is a document which has the effect of preventing the employee from making any further claims.
We often see deeds of settlements which provide nothing more than the employee's minimum entitlements. This is poor practice by the company because the employee is promising not to sue the company, and getting nothing extra in return.
You should get legal advice before signing any settlement agreements because if you sign it, you will likely be prevented from starting legal proceedings against the company. Remember, your claim may entitle you to significant compensation.
Be Prepared
If you are dismissed you generally have 21 days from the day that the dismissal takes effect to lodge a claim.
MKI Legal has lots of experience running dismissal claims. You can reach out to us before your dismissal, to find out where you stand and how strong your case is.
There are many circumstances which could entitle you to bring a claim including:
- You were not guilty of the allegations.
- If you did engage in some sort of wrongdoing it was not severe enough to dismiss you
- You performed your job adequately.
- You were dismissed because you made a complaint about your employment (this can be formal or informal) or asked questions relating to your employment.
- You were dismissed because you exercised your rights as an employee, such as taking annual leave, making a complaint to an outside organisation, asking for flexibility at work etc.
- Your employer breached an award or enterprise agreement.
- You were made redundant but your position is still required or there is another job that you could have done and many other reasons.
- There are many more reasons so it’s important to get legal advice.
What is Required for a Dismissal?
If an employer is going to end your employment, they must notify you that your employment is terminated. This is usually done in person. It is normal practice for the employee to receive confirmation in writing that their employment has ended. This is called a termination letter.
Be careful if resigning
Sometimes an employee might feel hopeless about the situation they are in and simply choose to resign.
If you resign, you limit the number of claims you can make. There is a concept at law called “constructive dismissal”. This means that an employee had no choice but to resign and they can argue that they were “constructively dismissed”.
If an employee can establish constructive dismissal, then they can make a number of dismissal claims and seek compensation.
However, constructive dismissal can be difficult to prove. It can be a difficult argument to say that there were no other alternative options but to resign.
If you are considering resigning with a view of trying to establish constructive dismissal, it is highly recommended that you get legal advice first because if you make the wrong decision, you won’t be able to pursue a dismissal claim.
If you have resigned, there are still other claims you can bring such as claims for not being paid correctly, breaching an award, breaching an enterprise agreement, breaching terms of the Fair Work Act and general protections (not involving dismissal). These can be complex so you should speak to an employment lawyer.
If you are considering making a dismissal claim, then it is usually best not to resign and let the company actually dismiss you. MKI Legal can assist you in making a claim on your behalf. As part of the settlement negotiations, we can seek that the dismissal be withdrawn and you are retrospectively allowed to resign.
Support Person
As part of the termination process, the company usually has meetings with the employee to give them an opportunity to respond to allegations.
You have the right to ask for a support person to be present at any meeting that is likely to result in a dismissal.
A support person
- can make it easier for you to deal with this stressful situation.
- can also act as a witness to give evidence about what happened at these meetings.
- can take notes about what was said and those notes can be tended into evidence if a claim is made.
- is not an advocate and does not speak on your behalf. They are there to support you.
A Negotiated Exit
MKI Legal has lots of experience negotiating on behalf of employees with a view to reach a mutual resolution. This can involve negotiating compensation above the minimum entitlements, resignation, a statement of service letter and other benefits.
If a negotiation is successful, this is usually recorded in a settlement agreement, which is a document setting out the responsibilities each party has. This document also prevents a party from commencing legal proceedings.
The idea of a settlement agreement is to settle a legal case before the legal proceeding is lodged.
If you have any questions or concerns about your circumstances, give us a call for a no obligation discussion.