Following the High Court’s Qantas decision almost twelve months ago, I wrote of the impact that decision would have on claims made by employees whose employment was terminated within the first six months. We’re now seeing these claims come through, and they provide another reason why it’s important to manage conduct and performance from day one in an employment relationship. 

What’s the claim and why is it being made?

As is well known, a dismissed employee is unable to maintain an unfair dismissal application if their employment was terminated within the first six months of the employment (known as the minimum employment period). Importantly, these employees still have access to all other species of claim, including claims under the general protection provisions of the Fair Work Act. 

In the absence of access to unfair dismissal, the most common claim a dismissed employee will assert is an allegation that the employer engaged in various forms of adverse action (including dismissal) for reasons which included the various workplace rights of the employee. Commonly, this includes an allegation that the employee was dismissed for making complaints or inquiries about their employment. 

With the High Court confirming that an employee’s workplace rights include future workplace rights, the stage was reset for employees who were dismissed during the first six months of their employment to allege that the dismissal was for reasons which included the prevention of the employee from being able to exercise their right to make an unfair dismissal application. 

Importantly, when defending these claims, the employer ultimately bears the onus to satisfy the Court that preventing the employee from being able to exercise that workplace right was not one of the reasons for the dismissal. 

So, what should employers do?

As a threshold matter, it needs to be acknowledged that any employee who would otherwise have access to unfair dismissal and whose employment is terminated within the first six months, can make this allegation. That’s a simple reality of the fact their employment ends before the end of the minimum employment period. The only way to remove the ability for an employee to make the allegation is to not terminate the employment.

So, what should employers do to both minimise the risk of a claim being made and put the organisation in the best place to manage a defence? As a start, I’d recommend the following: 

• We don’t hire to fire, so it starts with recruitment. Set the groundwork for the employee’s success by being clear during recruitment around what the role requires, and what ‘good’ looks like from a behavioural and performance perspective. 

• Set reasonable and realistic goals and outcomes as to where you expect the person to be at various signposts within the first six months. Those sign-posts should be evenly distributed, not back-end focused. 

• Communicate around expectations and outcomes from day one.  Discussing small matters provides the opportunity and space for graduated and nuanced conversations and gives the person the best opportunity to self-adjust and be successful. 

• Start talking about conduct and performance from day one and make it part of your regular cadence. Remember, we’re talking about performance, not just poor performance. Similarly, calling out the behaviours that we like and are culturally aligned with our workplace is as important (if not more) than calling out the behaviours we’re concerned about. 

• Hope is not a strategy. If it’s not working, and you don’t think it’s going to work, then call it early. There’s little benefit to be gained by hoping that it could change. The worst thing you can do is to stop discussing conduct and performance (because you’ve formed the view it’s a waste of time) or to let it drag on.   

• You don’t need to put it in a policy or to create a process that is mechanical and inflexible but establish a cultural process around ongoing and regular reviews during the first six months.  Don’t wait to the back-end to start talking about why you’re not satisfied with their progress. If you wait to raise and discuss legitimate and reasonable issues, it creates the space for the person to allege that you’re only raising it now because of something else that occurred in the meantime. 

• Apply the process to everyone (not just those who can access unfair dismissal) and apply it consistently and reasonably. It’s a great way to reassure employees that the focus of the process is to set them up for success, and it’s the best way to answer the allegation that it was targeted if it doesn’t work out. 

• There’s a simple reality that the closer you make the decision to the end of the six months, the more likely you’ll be faced with answering the question “why now?”, and the more likely your answer will need to be even more convincing that it had nothing to do with the fact that, in a short period of time, the person will gain access to the unfair dismissal jurisdiction.

• If you make the decision to dismiss, take the time to be clear with your reasons why. If you’ve managed the person’s conduct and performance from day one, the reasons will be consistent with the discussions you’ve been having throughout the employment.

Chris Oliver, Director