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“Most claims for wrongful dismissal unsuccessful”. Really?

By David Bates, MD, Better HR – Australia’s leading HR and employment relations service for employers

The Sydney Morning Herald recently published a story entitled ‘Most claims for wrongful dismissal unsuccessful’. David Bates, Managing Director of Better HR, has written to the paper to highlight Better HR’s concerns with the contents of their story. David’s email to the paper follows below and you can read the original article as it appeared in the Sydney Morning Herald here.

To Whom It May Concern

I am writing to you regarding the article that appeared in your paper on 16 May 2013 entitled ‘Most claims for wrongful dismissal unsuccessful’.

As an employment practitioner and MD of an employment relations firm that represents employers during conciliations and arbitrations, I’m always heartened when the media reports on the Fair Work system. Unfortunately, this particular report is riddled with material errors and presents an entirely inaccurate impression of the current unfair dismissal system.

First and foremost, your headline refers to ‘wrongful dismissal’ – a term that does not exist in the current laws and it is unclear whether your reporter meant ‘unfair dismissal’, ‘unlawful termination’ or ‘adverse action’. These three grounds are each dealt with separately by the Commission and therefore separate statistics are kept for all three. There are no statistics relating to ‘wrongful dismissal’ as no such claims exist.

The first line of the article then begins: ‘More than three-quarters of arbitrated unfair dismissal claims ultimately fail…’  This claim is, regrettably, quite misleading as most readers will not be aware of the important difference between the initial conciliation phase and the subsequent arbitration phase of a claim.

If your reporter was attempting to suggest that 76% of the very few claims that are not settled at conciliation and which continue to arbitration are then dismissed by a commissioner, she should have made this clear. As it reads, your article misleads readers to believe that 76% of all cases lodged by employers are dismissed. In fact, more than 10,000 cases are ‘settled’ at conciliation each year, with the vast majority of employers feeling obliged to pay ‘go away’ money to prevent further action. 

Given that most members of the general public know very little about the Fair Work system, I’d suggest they would benefit from a clearer article that more accurately describes the current processes and outcomes.

I can assure you that for small businesses, paying any amount of ‘go-away’ money can be extremely difficult, but most employers would prefer to go without an income for a few weeks to save themselves the frustration, time and expense of appearing before the Commission in a formal arbitration hearing. To suggest that ’employers are perhaps not doing it so tough under workplace laws’ on the basis of the incomplete information presented in this story is very disappointing.

That employers feel compelled to pay employees simply to ‘go-away’ is the real story here, and it is a fundamental injustice in our current laws that is overlooked by your article.

Faithfully,

David Bates BA(Govt) LL.B(Hons)
Managing Director

Better HR. Protecting Employers.