If there is to be equality in access to Fair Work unfair dismissal protection, the system has to be no-cost or very low-cost for applicants. This also means that it is open to frivolous unfair dismissal claims for people with an axe to grind or who simply want a money-grab. As a result, Fair Work unfair dismissal claims are popular – a bit like offering $71.90 lottery tickets with a 50/50 chance of winning thousands.
The good news for employers is that it is theoretically free for them too. But in reality there are significant costs in time, stress and lost productivity, and there’s also costs associated with getting expert help to improve outcomes – a comparatively small investment (with us at least) but still an extra cost to the business. The system is as flawed as it is fair, and whether or not employers agree with its current form or processes, it exists and it has teeth.
Sometimes the employee is most, if not all, of the problem. Perhaps they feel genuinely unfairly treated. Even if they weren’t, but honestly feel they were, to them it’s the same thing and they’ll fight. Sometimes it’s a cynical money-grab, and stories passed around about cash settlements only encourages that. Other times it’s revenge, irrespective of merit, and many times it can be all three. Either way, ex-employees often have plenty of time available and nothing to lose.
Labour organisations can be helpful, as they usually don’t want to get involved in frivolous claims. But if they feel an employee has been unfairly treated, or perhaps have another reason for targeting your business, they’ll offer dismissed employees professional support in the FWC and may even help to finance action outside of the system. In our experience there’s every reason to be open, firm and fair in dealing with trade unions and their members. The earlier this starts in a process the better.
Sometimes the employer is at fault. Knowing that others might end up making more powerful judgements, fairness has to be more than personal values and common-sense. Process is vital, including giving employees the opportunity to make better choices in what they do and how they go about it, and to be able to speak up about why they did what they did, or why they shouldn’t lose their job at all. This gets really hard when an employer deeply believes that an employee is acting against the interests of the business, themselves or fellow employees, and that they should know better and have been given chances. For them the understandable answer is obvious – the person needs to go before they can do more damage, cost more money or create more risk for others. But “knowing” is not enough, especially about assumptions like intent and attitude – how do you prove those things in court? The first challenge then becomes three-fold –
- Would an impartial observer reach the same conclusions about the viability of ongoing employment based on behaviours and performance?
- Would an impartial observer be able to see that the employee knew what was expected of them, had been correctively counselled before, have the skills, information and support to do what was required, and been given a fair opportunity to respond to the reasons for a proposed dismissal?
- Was there a reasonable, fair, transparent and recorded process?
In the end, the system is the system, and some ex-employees won’t simply walk away quietly irrespective of objective merit. This means employers have the most to lose, have to do most of the work and have to take most of the responsibility for proving their case. It’s worth getting right.