Blogs & News
The Importance of not Creating a Reason Vacuum
In the lead up to a dismissal it’s not uncommon to hear the comment “we don’t have to give a reason for the dismissal. They’re in their probationary period”. Although not without a kernel of truth, there’s unlikely to ever be a circumstance where an employer should not give clear and well-founded reasons for the decision to terminate an employee’s employment.
At its core, it’s correct that an employee whose employment is terminated within the minimum employment period (which may or may not align with the contractual probationary period) cannot maintain unfair dismissal proceedings. In that sense, the failure (or refusal) to provide a reason for dismissal can’t be challenged by the employee within that jurisdiction. But with that acknowledged, there’s a number of important realities:
First, no employer dismisses an employee for no reason. There’s always a reason.
Second, while an unfair dismissal application might be off the table, all other claims remain available to the employee. Importantly, the minimum employment period only applies to unfair dismissal claims.
Thirdly, in almost every other type of claim a dismissed employee could commence, the reason why the employment was terminated tends to sit front-and-centre. Whether the resulting claim asserts discrimination, adverse action, unlawful termination or wrongful dismissal, the reason for the dismissal is important, if not critical. In most claims, the employer needs to rely on, and clearly establish the reason for the dismissal in order to discharge what is often a reverse onus of proof.
Finally, if the employer creates a reason vacuum by not giving a clear reason for the dismissal, they can hardly be surprised when the former employee fills that vacuum by inserting their own reasons, and those reasons are more closely aligned to establishing the basis for the inevitable claim. As the employer then seeks to dislodge the employee’s reason with their own, it’s not too hard to see the cross-examination coming towards the decision maker…
Cross-examiner: “You dismissed Jasmine because she’d recently complained about her manager bullying her, and because she’d taken personal leave to deal with the stress of that situation. Didn’t you?”
Decision maker: “No. I dismissed her because after four months’ of employment, she’d failed to meet the minimum standard for several aspects of her role. That’s what her manager had been trying to work with her about.”
Cross-examiner: “Really? It was that simple?”
Decision maker: “Yes.”
Cross-examiner: “Well, if it was that simple, why didn’t you tell her that when you sacked her…?”
Let’s face it. Employers always terminate for a reason. By not giving it, the employer just exposes themselves to the proposition that they didn’t give it because the “real” reason was something that couldn’t be said.
Chris Oliver, Director
Other Relevant Resources
31 August 2016