Raven HR’s Post

⚠️ Dismissing an employee on the last day of probation? Think again! ⚖️ In a recent Federal Court case, an employer hastily terminated an employee for serious misconduct at 4:40pm on the last day of the minimum employment period. The employer made the decision to terminate following an executive committee meeting and before an investigation report into the conduct of the employee had been finalised. The employee sought an interim order for reinstatement pursuant to section 545 of Fair Work Act 2009 (Cth) (FW Act). 👩🏻⚖️ The Court found that the employers actions gave rise to a prima facie case of unlawful adverse action and reinstated the employee pending a final hearing. While this was an interim decision only it gives rise to the notion a dismissal like this during the probation/minimum employment period could result in unlawful adverse action and the court accepted this without questioning it in the decision. ❓What is the minimum employment period? An employee is only able to make a claim for unfair dismissal once they have completed the ‘minimum employment period’ which is: 🔹 6 months from commencement of employment if the employer has 15 or more employees; or 🔹 12 months if the employer is a small business with less than 15 employees. 🤷🏻♀️ What is adverse action? Adverse action is where a person (usually an employer) takes, plans or threatens to take action against an employee (e.g. dismissing an employee) because they exercised a workplace right or to prevent them from exercising a workplace right. Adverse action claims have a reverse onus of proof meaning, the employer needs to prove that they did not take adverse action (which assumes that the employer is guilty until they prove they are not). 🔍 What workplace right applied in this case? It's unlawful to dismiss an employee if a main reason for doing so is to prevent them from exercising a workplace right. When the employer in this case terminated the employee at 4:40pm, just 7 hours before the minimum employment period ended, they had dismissed the employee to arguably prevent them from being able to exercise their workplace right to make an application for unfair dismissal. 🔗 I’ll put the link to the case in the comments. —————————————————————————————— If you enjoyed this post follow Melisa Raven 🐦⬛ and click the 🔔 to ensure you see all my posts. Raven HR #HR #IR #Consulting #Outsourcing