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Understand your rights and responsibilities
for employee dismissalQ&A with LHD Lawyers

AFTA @ Work Newsletter - December

  • Q: I am the manager of a travel retail business. I am considering dismissing an employee who is not performing to my standard. How can I dismiss this employee without exposing myself to a potential unfair dismissal claim? Trevor, Geelong

A: To be eligible to make an unfair dismissal claim, individuals need to be employed for at least six months. In the case of small businesses where there are less than fifteen employees, the relevant time period is twelve months. A dismissal will be considered unfair where it was harsh, unjust or unreasonable.

In circumstances where an employee has engaged in serious misconduct, such as theft or fraud it would be unlikely that their dismissal could be viewed as harsh, unjust or unreasonable. However, in the circumstances where your employee is under-performing it is advisable to take the following action prior to dismissing your employee in order to avoid an unfair dismissal claim.

You should provide the employee with a written warning about his or her behaviour. You should advise them that they are at risk of being dismissed if there is no improvement. The employee should be given the opportunity to respond to the warning, and should also be provided with the opportunity to improve their performance. For instance, you may provide additional training. You should then keep a record of any behaviour which is still undesirable, as that will assist you to defend an unfair dismissal claim should you ultimately need to dismiss the employee.

For more information please contact:

LHD Lawyers logoKayt Hogan
LHD Lawyers Solicitor
LHD Lawyers


Suite 1, Level 3,
130 Elizabeth Street
Sydney NSW 2000
Tel: 9264-6644

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