Getting fired: what are your rights?

No one likes to be fired and no one likes to fire someone either. However, sometimes it’s unavoidable. An employee might be underperforming, or have engaged in misconduct. In any case, if you’ve lost your job, it’s important to understand your rights so you can deal with the situation and move on.

Termination reasons

The two main reasons people are dismissed are:

  1. Misconduct

  2. Underperformance

Misconduct generally relates to behaviour. It can include lateness, unauthorised absences from work, being inappropriate towards your colleagues, refusing to carry out your work duties and serious safety breaches.

Underperformance is about your standard of work. It covers poor quality of work, not meeting deadlines, non-compliance with workplace procedures and not completing all of your tasks.

Another reason people might be let go is when their position is made redundant. This is not the same as being fired, as the job loss is not related to performance or conduct. A redundancy can occur because an employer no longer needs the job to be done, or the business is restructured. The change in circumstances could be due to technology replacing the position, business slowing down, the business relocating or closing down, or even bankruptcy or insolvency.

What rules must be followed when firing an employee?

There’s a longstanding idea that you must receive three warnings before you can be fired. However, this is not actually true.

If you’re a permanent employee (not a casual employee), past your probationary period and there are conduct or performance management issues, your employer should give you an opportunity to improve. It’s best practice for the employer to document any discussions or outcomes.

If an employer does give warnings, they should be fair and reasonable, the reason for the warning should be clear, and the details should be written down.

To terminate your employment, your employer has to give you written notice of your last day of employment. Your final pay should include all your outstanding entitlements, such as payment for time worked or annual leave.

Your employer can dismiss you immediately (with no notice) for serious misconduct – such as theft, fraud or violence – as long as they have proof of the misconduct. In this case, your employer still has to pay all your outstanding entitlements.

When it comes to redundancies, an employer must consult with you and do their best to find you another position within the company.

Unfair dismissal

If you think you’ve been unfairly dismissed or that your position is not really redundant, you can make a claim for unfair dismissal through the Fair Work Commission. To do this you must be a permanent employee, not be in a probationary period and earn less than $138,900 each year.

What do you do now?

So, you’ve lost your job. What are your options now? The smart move is to get started on your job search and see what opportunities are out there. Losing your job could actually be the kickstart you need to move onwards and upwards in your career.

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