Unfair Dismissal – You can lawfully dismiss an employee and still lose an unfair dismissal claim
A valid reason isn’t enough to defend a claim in the Fair Work Commission. If the process is rushed, undocumented, or denies procedural fairness, the Commission can still find that the dismissal was harsh, unjust or unreasonable.
Probation – Does not mean termination is without risk
While unfair dismissal protections may not apply during the minimum employment period (this is different to probation, but many employers align their probationary periods with the minimum qualifying period), other claims can still arise in relation to the termination, including general protections and discrimination claims. Termination should always be approached with caution.
Redundancy – Is only a defence if it’s genuine
If the role still exists, duties are redistributed, or redeployment wasn’t properly considered, the “redundancy” label won’t be an adequate defence. The Commission looks at substance and recent cases have increased scrutiny of redundancies – get legal advice early to minimise risk.
A resignation can legally be treated as a dismissal
If an employee resigns due to employer conduct, including pressure, threats, or untenable working conditions, then that resignation may be classed as a constructive dismissal, with full exposure to claims.
Paying out the notice period doesn’t neutralise risk
Paying in lieu of notice satisfies a contractual obligation, but it does not operate as a statutory shield. It does not prevent unfair dismissal, general protections, or discrimination claims from being filed in relation to the termination itself. Paying out the notice period simply complies with an employer’s obligations under the law.
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