When contemplating a dismissal, employers need to be aware of the range of legal claims that can be brought against them arising from the dismissal. Ideally, a dismissal should be conducted in a manner which avoids or minimizes the risk of such claims.

1. Legal Claims
When contemplating a dismissal, employers need to be aware of the range of legal claims that
can be brought against them arising from the dismissal. Ideally, a dismissal should be conducted
in a manner which avoids or minimizes the risk of such claims.
While termination of employment can also result in employers bringing legal action against their
former employees, the majority of litigation for alleged wrongs arising from termination of
employment is initiated by employees. This is because of employees who are dismissed tend to
be the losing parties in that their jobs and income have been withdrawn from them, whereas
employers are usually able to cover their loss by employing someone else. Furthermore, the
benefit to employers in commencing litigation against their former employees will rarely justify
the costs involved in the litigation process. However, this is not always the case, and some
employers may undertake litigation against employees who fail to full fill their contracts.
One of the key legal claims available to Australian employees is an unfair dismissal claim under
the FW Act. In deciding whether a dismissal was unfair, the legislation directs the FWA to have
regard to a range of factors, including:
Whether there was a valid reason for the dismissal relating to the employers capacity or conduct
Whether the employee was notified of the reason
Whether he or she was given an opportunity to respond
Whether the employer unreasonable refused to allow the employee to have a support person
present to assist at any dismissal related discussions, and
In the case of unsatisfactory performance, whether the employee had received warnings in
relation to his or her performance.
Following the fair work reforms, this avenue of redress is available to many more employees
than was the case under Work Choices. With the abolition of the former 100or fewer employees•
exclusion category, the federal government estimates that an additional three million employees
are eligible to bring an unfair dismissal claim.
However, for those employees who remain excluded from the unfair dismissal regime - such as
small business employees in their first year of employment - alternative termination claims will
continue to be relevant. These include:
General protections under the FW Act
Federal and state anti-discrimination legislation
A common law action for breach of the employment contract
A claim for breach of an award or enterprise agreement
A trade practices claim under the federal Trade Practices Act 1974
A best practice• approach to termination takes all of these legal claims intro account and seeks
to avoid potential exposures. It is also designed to maximize workplace harmony and minimize
exposure to damaging publicity, industrial action, decreased productivity and poor employee
morale.
An employee in the federal system who brings a claim against his or her employer as a result of
termination will do so in FWA, in the federal court or the Federal Magistrates Court, or in one of
the state common law courts (for example, the district or supreme courts). The appropriate forum
will depend upon the type of claim. For example, unfair dismissal claims are brought before
FWA; general protections claims are considered in the federal court or the federal magistrates

2. court; and breach of contract claims are considered in the common law courts (although, as
discussed in employee found other work or was reinstated (or re-employed).)
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