Termination clauses, probation periods and redundancy terms are the provisions most often challenged before the National Industrial Court.
The National Industrial Court has steadily narrowed the scope for employers to terminate without reason, drawing on international best practice as well as domestic statute.
Contracts drafted a decade ago frequently no longer reflect that position, and employers relying on them are exposed.
Say why, and say it consistently
Where a reason for termination is given, it must be supported by the record. Inconsistency between the letter, the personnel file and the evidence led at trial is the single most common reason employers lose.
Documenting performance management contemporaneously costs little and materially improves an employer's position.
Redundancy requires process
Selection criteria, consultation and the treatment of accrued entitlements should be settled before any announcement is made.
A defensible redundancy is one where the process can be explained from beginning to end without reference to any individual employee's identity.