INDUSTRIAL RELATIONS: Fair work and avoiding unfair dismissal claims

Why do you think it was unfair? Was it really unjust? Do you think it was harsh? Was it really that unreasonable? These are important questions to ask yourself before you send an underperforming employee to the deserted land of unemployment and put yourself at risk of an unfair dismissal claim.

You need to ask these questions because unfair dismissal claims are on the rise, and the only winners are the dismissed employees, most of whom grin all the way to the bank. With the lodging of a claim being as easy as picking up a phone, or logging onto a website, the impact the new Fair Work Act 2009 is having on employers cannot be measured just in dollars and cents, but also in time and reputation.

Employers are inherently always torn. Defend or not to defend, that is the question. Very Shakespearian I know, but at the end of this play the curtain doesn’t come down slowly with the crowd screaming for more.

Conciliation and arbitration

Now claims are heard in two stages; the conciliation stage and the arbitration stage.

The conciliation stage aims to ‘settle’ the dispute to avoid trial. It is at this stage where most employers capitulate and pay some amount of “go away” money. You know what that is? The same money you pay your teenage kids when they are bugging you for more pocket money in the middle of your favorite TV show.

It is also however the stage where the dismissed employee can back out of the claim, with sound advice from their representative, or where they chose to go to trial (arbitration) where they run the risk of losing. It’s at that point that most of the monkeys chose to chase the big bunch of 100 dollar bill bananas.

At the outset, the best position for an employer is to conduct every conciliation as if a full trial is inevitable. This will assist you to resist the urge to ‘settle’ the matter at conciliation. Settling claims at conciliation sets up a negative environment as ‘under performers’ are seen to be rewarded.

Now it sounds bizarre, but spending the money on a trial and winning saves your organisation money in the longer term. It sets the required precedent that you have the courage of your convictions and that frivolous claims will not be tolerated. It develops the skills of the managers, and empowers your team.

Now the number one question that clients always ask me is “What can I do to make sure I am protected”. The answer is simple.

  1. Be prepared
    Good Human Resources and Industrial Relations support should be a key component of any business. With this strong, unwavering support, the need for a room full of bananas to be tucked away for a rainy unfair dismissal day will not be necessary.
  2. Never assume you are in control
    The ease with which an employee can make a claim is not the only thing business needs to worry about. The level of assistance an employee can illicit from a trade union or other employee representatives can transform what you thought was going to be a simple ending of the employment relationship, to a full blown band of gorilla’s invading your business.

Finally here are some helpful tips:

  • Write your unfair dismissal submission before you conduct the process and execute the dismissal;
  • Never let anyone tell you it can’t be done, but how it can be done;
  • Be prepared, stay one step ahead of that monkey, and it will never get out of its cage.

Michael Cosgrove is the Director of Rivercity Consulting, a company that offers human resources and industrial relations services.

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