The Risk of Rushing a Termination for Misconduct or Poor Performance

If an employee feels they were unfairly dismissed, they can file an unfair dismissal claim. The Fair Work Commission (FWC) considers these claims and decides whether the dismissal was harsh, unjust or unreasonable.

For a club to defend against an unfair dismissal claim, they must be able to show two things: a valid reason for the dismissal and that a fair process was followed.  You can have a valid reason for termination, but if you do not follow the correct process, you may find yourself with an order from the FWC to reinstate the employee or an order to pay compensation. 

1. Valid Reason 

A valid reason is one of the key requirements for a fair dismissal. These reasons usually fall into two categories: misconduct (for example, stealing, harassment, unprofessional behaviour) and poor performance (for example, failing to complete tasks, not meeting work targets etc).

For a club to defend an unfair dismissal claim, the reason for termination must be: 

• sound, defensible or well founded; and
• defensible or justifiable, on an objective analysis of the relevant facts. 

The validity of the reason will depend on the situation. The FWC will look at whether the club had enough proof, whether their action was reasonable and all other circumstances including tenure, age, previous warnings etc. 

2. The Need for a Fair Process 

Even if there is a good reason for terminating someone’s employment, the process that leads to the dismissal must also be fair.  A club must follow the right steps before reaching a final decision to terminate. 

Procedural fairness typically means: 

• Telling the employee about the problem: the employee needs to know exactly why their behaviour or performance is being questioned.
• Investigating the situation: in cases of misconduct, the club must properly investigate the problem and not rush to conclusions.
• Letting the employee respond: the employee should be given a chance to 'show cause’ as to why their employment should not be terminated in relation to any substantiated allegations.
• Giving the employee a chance to improve: if there are performance issues, the employee ideally should be given an opportunity to improve. 

If a club doesn’t afford procedural fairness to the employee - even if they have a valid reason for dismissal – it may be found unfair. 

Should you have any questions, please contact the ClubsNSW Workplace Relations Team via ClubASSIST on 1300 730 001.