Unfair dismissal laws

Context

An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and the Fair Work Commission (FWC) finds that:

• the employee was dismissed, and
• the dismissal was harsh, unjust or unreasonable, and
• the dismissal was not a case of genuine redundancy, and
• the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employee was employed by a small business.

Position

There are several problems with the unfair dismissal system as it currently stands. These include overly complex procedural fairness requirements, lack of consistency and direction from FWC decisions, lack of relevant factors taken into account by the FWC, a Fair Dismissal Code that provides very little protection to small business and has not worked in the manner promised, the return of ‘go away money’, an unnecessarily complicated definition of ‘genuine redundancy’ and problems with the conciliation process.

Members feel that the balance has swung too far in favour of employees. The procedural fairness requirements in the unfair dismissal process have become so cumbersome that it makes it almost impossible for an employer to carry out a ‘fair’ termination process that would protect a business from an unfair dismissal claim. As a result, there is a failure in the Act to provide rights and obligations that are simple and straightforward to understand.

Recommendations

• Consideration should be given to introducing an all-round fairer and simpler set of principles to allow the FWC and all parties involved in an unfair dismissal application to deal with claims in a more expeditious and balanced way
• Consideration should be given to how payment of ‘go away money’ can be eliminated or reduced in unfair dismissal claims.

18 June 2015