Unfair Dismissals-How is it working?

There was an article in the Fin Review earlier this week by Paul Oslington which looked at how unfair dismissal laws were working under the new regime.The end result of the piece was that there not not enough data to make a judgment either way.I will leave it to others to examine the data, but this is one person's perspective who acts for Employers of varying sizes, large and small, who has been invloved in both the new regime and previous ones.

Yes, unfair dismissal claims appear to have increased, however I suspect that this is more to do with the fact that 85% of all businesses were exempt from such claims during the time of Workchoices so I don't believe there is any evidence that demonstrates that it is easier to "win" for employees under the new laws.

The next point is that the vast majority(I would say 95%) of claims never go to hearing because they resolve well before that point.There are several reasons for this, the biggest of which is that it costs a lot of money for the parties to proceed with these claims.For the Employer there is also the valid consideration of not only paying legal fees but their timey time being spent on dealing with the issues in the case, when they could be doing something more productive.

This is coupled with the fact that, for both sides, even if you "win" the case, the other side will, in almost every case, not have to pay your costs.Therefore there is very little incentive for an employee to engage a lawyer or advocate if, at the end of it all, the money they get from the victory goes straight to the lawyer.And the same applies to the employer-even if they"get up" they are still facing a bill from their lawyer.

All of this encourages settlement, which is the stated aim of Fair Work Australia.Employers have valid concerns about paying "go away money" and those concerns are more valid where the employee "tries something on" when they were dismissed validly.However, my experience is that these types of sitiations, where the Employer has done things correctly, are few and far between.

So, what's the solution?My strong view is that Employers can help themselves reduce these claims by dealing with the dismissal in a legal and compliant way by having systems in place and giving employees and opportunity to fix up performance.Also, by only using summary dismissal in appropriate situations and by doing things "by the book".Too many employers, large and small, fall down in these areas time and time again.Sure, there will still be "try on" claims, but these will still be the small minority.

On another note, good luck to my Sea Eagles tonight as they take on the Storm in the top of the table clash.A preview to the Grand Final?Let's hope so......

And its fantasy football time again(the US version) and me and my mates have the draft this weekend.Looking forward to it and fingers crossed I don't stuff up my picks...again.