Termination – make sure you follow due process

Whether an employee is permanent or casual, a fair and due process is always required when considering a termination of employment.

A dental practice who terminated a casual assistant and replaced her with a permanent worker, has been found to have discriminated against the casual employee and are now forced to compensate her $10,000 for economic loss and $2,000 in general damages.

While the employer argued they required greater stability in the workplace and that due to the unprofessional conduct of the casual employee, she was terminated.

The employee argued that she was the only employee terminated out of a pool of 5 casual employees and was terminated whilst home schooling her children during the COVID pandemic. She claimed she was terminated due to her parental status. 

The conduct issues referred to by the employer were accusations from two years prior where the employee allegedly spoke to colleagues in a bossy manner, and one complained of being ignored.

The employer did not issue any performance warnings at that time as they believed that simply discussing the issues with the employee would be enough to cease the concerns and the incidents in isolation did not warrant formal disciplinary action.

The employer further stated that he wanted to retain 2 of the other casual employees as they were university students who had weekend availability and could work during school holidays.

The fact that the employee’s family responsibilities impacted her ability to work on weekends was further argument as to the discriminatory reasons for termination.

It was found that the employer had breached sections 8(1) and 8(b) of the EO Act as it had treated her unfavourably by terminating her employment because she possessed the attribute of parental status or status as carer which includes family responsibilities and limited work availability.

It was further found that the employer expected that the employee be more reliable, more stable, more predictable, and more available regarding the days and hours she was available to work.

For assistance with your obligations regarding termination or any other HR matter, please contact us at [email protected] or 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up to date at the time of reading. It is not legal advice and should not be treated as such.

Information in HR Advice Online guides and blog posts are meant purely for educational discussion of human resources issues. It contains general information about human resources matters and due to factors, such as Government legislation changes, may not be up to date at the time of reading. It is not legal advice and should not be treated as such.

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