The Fair Work Commission has now released its quarterly statistics on unfair dismissal applications lodged from July to September, and it’s not good news for employers.
Before considering the stats, it’s worth noting how the unfair dismissal process actually works in practice (I say in practice, because it certainly doesn’t work the way we were all told it would).
When an employee is dismissed, they jump online and lodge an application with the Commission claiming their dismissal was ‘unfair’. They can do this whether they worked for their employer for 1 day or 5 years, because there is no automatic process for weeding out those claims lodged by employees who aren’t actually protected from unfair dismissal in the first place.
Once the application’s received, it’s (eventually) passed on to the former employer with a letter demanding they provide a response within seven days. This is despite the fact it often takes the Commission weeks to notify the employer of the application. The covering letter they send is also worth a read because it’s a generic form letter that often contains blank spaces where the recipient’s name is meant to be inserted.
The case is then listed for conciliation – usually by phone – during which a conciliator goes back and forth between the parties to see whether the employer is willing to pay ‘go-away’ money to the employee to make them, well, go away. This routinely happens even when the employee was never eligible to lodge the claim in the first place.
If conciliation doesn’t work (in other words, if the employer refuses to make an offer of enough go-away money to satisfy the employee) the case is then lodged for formal arbitration before a Commissioner.
So, of the approximately 4000 unfair dismissal claims lodged in the quarter to 30 September, how many do you think were ‘settled’ at conciliation? 200? 500? Try around 3700.
Of course, the Commission will claim this is a great success – that it’s proof the system ‘brings parties together’ and achieves ‘fair and reasonable outcomes’ (I love public sector speak). In reality, it shows the system is broken, with thousands upon thousands of employers paying ‘go-away’ money each and every year.
There are two additional statistics I’d love to see the Commission publish each quarter:
1. How many of the ‘settled’ claims were actually lodged by employees who were never protected from unfair dismissal in the first place? And,
2. What was the average amount of go-away money handed over by employers?
Those two statistics would make it clear to all and sundry that the current system is not fit for purpose.
About the Author
David Bates BA(Govt), LL.B(Hons): David is the Managing Director of Better HR, Australia’s leading HR and employment relations service for employers. David is proud to provide a wide range of strategic, practical and plain-English employment relations advice and support to Australian business owners and operators. He is deeply committed to assisting employers and is a passionate advocate of competition and free-enterprise.
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