Two recent stories about unfair dismissal claims – one where the business claimed to have issued multiple performance warnings to the employee before dismissing them, and the other about a religious group forced to defend multiple unfair dismissal claims by the same applicant – left many readers seething.
Business leaders vented frustration at bearing the onus of proof and being forced to defend frivolous claims by disgruntled former employees.
One My Business reader claimed the Fair Work Commission (FWC) has “lost sight of its role”.
“I attended a Fair Work forum for local businesses last year. The closing statement from one of their speakers was, “It’s not a matter of if we will get you – it’s when. What the hell is going on here?”
In response to the case involving multiple claims by the same individual, the FWC conceded that it was an unusual case, but said that, ultimately, it is hamstrung by the Fair Work Act, which it said “does not limit the number of applications an individual can make to the Fair Work Commission, even if they have lodged previously”.
The commission also claimed that it “does not have discretion under the act to determine whether it should accept an application or not”.
Minister refutes FWC claim
However, Craig Laundy, minister for small and family business, the workplace and deregulation, refuted this claim.
He told My Business that “under the Fair Work Act, the FWC can relevantly dismiss an application if it is frivolous or vexatious or has no reasonable prospects of success”.
“The first step of an unfair dismissal claim is conciliation and this provides an avenue for the relative merits of a claim to be discussed before the matter proceeds to final determination,” Mr Laundy said.
The minister also claimed that the government has previously sought to “give the FWC clearer powers, in limited circumstances, to deal with unfair dismissal applications ‘on the papers’ where a person has unreasonably failed to discontinue an application, or the application is frivolous or vexatious or has no reasonable prospects of success,” but that such measures were not supported by the parliament.
Not all one-sided
A little-known fact for employers is that there are channels available to them to counter pointless or malicious claims by former or current workers.
“A business may pursue costs against an applicant, and the FWC can order such costs where it is satisfied that the application was made vexatiously or without reasonable cause, or had no reasonable prospects of success,” Mr Laundy said.
Change is coming
Employer concerns, particularly those from small business leaders, will hopefully soon be addressed.
Mr Laundy revealed that the FWC has recently been the subject of two reports examining user experience, particularly that of small business, which he said “provide useful insights and recommendations about the commission’s services and how the tribunal’s procedures and resources might better meet the needs of small business.”
One of those reports was completed by former Small Business Minister Bruce Billson, who made a number of recommendations including the establishment of “ongoing consultation channels with small business” and the introductions of “early triage/filtering of unfair dismissal and general protections (adverse action) applications”.
Such moves, Mr Billson said, would help employers to meet the myriad of complex workplace obligations and minimise the impact that disputes have on the ongoing performance of a business.
Mr Laundy told My Business that “the Commission intends to publicly outline a number of measures in response to these reports next week [commencing Monday, 30 July].”