An employer is hit with an unfair dismissal claim every 3 and a half minutes in Australia


An analysis of the Fair Work Commission 2016-17* report reveals an employer was hit with an unfair dismissal claim every three and a half minutes last financial year, according to Employsure. The workplace relations specialist also found that employers lost 60% of the 14,135 unfair dismissal applications brought against them in 2016-17. 

Commenting on the finding, Ed Mallett, Managing Director of Employsure said unfair dismissal claims “have become a growth industry of sorts.”

“With options available to employees like unions, and advocacy groups, and particularly with the rise of no-win-no-fee lawyers, it’s no surprise the employer success rate in unfair dismissal cases are dipping. Lodging an unfair dismissal case is easier than lodging a tax return.”

Mallett told Dynamic Business that while the Commission hadn’t provided data split between large medium and small businesses, SMEs typically don’t have access to the same resources, time, or money to manage and address unfair dismissal claims as larger organisations.

“SMEs are under a lot of pressure,” he explaned. “They’re often swamped and struggling to keep their head above water running their business. So, it’s hard to keep across the guidelines, legislation and requirements that they need to be across. SMEs commonly do what they believe is fair, not realising that they have not followed the Fair Work guidelines.”

“Unfair dismissal is such a prevalent issue so employers must make sure they have robust policies in place to be clear and compliant in these matters.”

Mallett suggested five ways for SMEs to minimise the risk of being hit with an unfair dismissal claim:

  1. Have clear descriptions of unacceptable behaviour.

“Employers need to train staff on good conduct and include clear descriptions of unacceptable behaviour in employee handbooks. This can cover every aspect of employee functions from absenteeism, sick leave, performance and, most importantly, conduct.”

  1. Don’t keep policies in a drawer.

“When employers have created workplace policies, it’s important that staff know about them. A written or computer quiz could ensure employees have read and understood the policies.”

  1. Consistency is key.

All disputes should be dealt with consistently. Employers should adhere to their own policies and procedures to the letter, in every case. Consistently addressing conduct issues will help staff perceive what is appropriate workplace behaviour and what is not.”

  1. Have meetings before the situation gets out of hand.

“If an employee is stepping out of the defined code of conduct, employers are within their rights to schedule a disciplinary meeting to clearly outline the employee’s unacceptable behaviour. Following this meeting, a formal, written warning may be justified. If the misconduct is repeated or it constitutes serious misconduct, this could ultimately justify dismissal.”

  1. Get the best advice. 

“Get expert advice to develop solid employee contracts, workplace policies and performance management programs to put you in the best position possible before a dispute occurs. Employers shouldn’t act hastily but instead use expert guidance to gain knowledge of your rights and obligations as an employer.”

* https://www.fwc.gov.au/documents/documents/annual_reports/fwc-annual-report-2016-17.pdf

  • Michael Ratner

    Two things are apparent……
    1. The premise of innocent until proven guilty don’t really apply.
    2. There should be a list available of both applicants and defenders who use or are involved in The Fair Work Process.