Avoiding unfair dismissal proceedings in the real estate sector

There are myriad challenges that real estate agencies face when it comes to unfair dismissal proceedings; however, as one lawyer explains, there are also ways to ensure your business can steer clear of litigation.

Rex Afrasiabi (pictured) is a director of commercial and property law firms New Chapter Legal and Bond Property Lawyers, and he is a leading legal practitioner for both real estate agents and mortgage brokers.

In conversation with HR Leader recently, he reflected on what he sees as being the headline issues/challenges pertaining to unfair dismissals in the real estate sector, namely: that inadequate notice or pay in lieu of notice was provided; that dismissal was: harsh, unjust or unreasonable; due to poor performance, but no proper process was followed; due to redundancy, but the redundancy was not genuine; or due to a protected attribute such as race, gender or disability.

Navigating challenges and working with lawyers

To overcome these issues, Afrasiabi suggested numerous practical steps, starting with the implementation of clear and fair employee procedures, which are both documented and accessible, and providing written warnings. “Prior to termination, issue formal written warnings outlining concerns and expectations,” he said.

Proper documentation must be maintained, he noted – “keep accurate records of employee performance, conduct, and any disciplinary actions” – and procedural fairness must be followed: “Give employees a chance to respond to allegations before any decision is made.”

Elsewhere, performance improvement plans should be offered, with regular performance reviews being conducted, Afrasiabi suggested.

“Support underperforming employees with structured improvement opportunities. Proactive feedback helps manage expectations and mitigate conflict.”

Finally, managers should be trained on HR compliance, so they understand legal obligations and proper dismissal procedures, and legal advice should always be sought early.

This is especially important before terminating, he said, “to reduce legal exposure and ensure compliance with Fair Work principles”.

Moreover, Afrasiabi continued, lawyers and employers need to work in tandem to not only ensure optimal outcomes for staff and former staff but also to avoid litigious proceedings.

To this end, he suggested reviewing internal procedures, educating staff on legal obligations, conducting proactive audits, developing clear documentation templates, offering ongoing legal support, and promoting early intervention.

“Lawyers can assist employers in reviewing and strengthening their employment policies and dismissal processes. Provide training on Fair Work requirements, procedural fairness, and lawful termination practices. Regularly assess workplace practices to ensure compliance and reduce risk. Help employers create consistent warning letters, performance plans, and termination notices. Be available to advise before action is taken, minimising reactive litigation. [And] encourage resolution strategies such as mediation before issues escalate,” he said.

Lessons for other sectors

Unfair dismissal laws, Afrasiabi mused, apply uniformly across all sectors, with legal standards under the Fair Work Act not varying according to the type of work.

Sales-driven environments like real estate, he said, highlight the need for robust procedures.

“High-pressure performance cultures can lead to rushed decisions – other sectors can learn to slow down and ensure compliance,” he said.

“[As such], consistency in process is key: regardless of industry, employers must follow the same fair and lawful procedures. Documented warnings and procedural fairness are essential: these remain the foundation of a defensible dismissal in any sector. [And] training and education reduce risk: what’s become clear in real estate is that regular training on employment law helps prevent costly mistakes – this lesson applies industry-wide.”

More broadly, Afrasiabi noted that misclassification is a growing risk, with some employers attempting to avoid obligations by labelling employees as independent contractors.

“Unfair dismissal protections don’t generally apply to contractors. However, if a contractor is found to be an employee in substance, they may have rights under employment law,” he said.

On this front, he continued, there are risks of multiple claims.

“Misclassified workers may claim not only unfair dismissal but also unpaid employee entitlements like leave, superannuation, and redundancy,” he said.

It is thus critical, Afrasiabi said, to have proper classification: “Employers must ensure their independent contractors are genuinely engaged as such – based on the totality of the working relationship, not just the contract label.”

And, always, seek legal advice early, he concluded: “Regular reviews of contractor arrangements with legal input can help avoid exposure to costly claims and penalties.”