At a social event recently I was intrigued to listen to an adversarial debate between two people about the Fair Work Commission and unfair dismissal cases. What follows are my feelings on the issue, having spent a good part of my professional life being involved in one way or another in the industry.
The good
The availability of a regulated adversarial system to resolve complaints of unfair dismissal is a very useful and sophisticated way of resolving workplace disputes about the fairness of the termination of the employment of an employee. Although many Australians take their job very seriously and devote more time to it than is expected, or for which they are remunerated for, in my experience the unfair loss of a job can have very profound and devastating implications when the employment of an employee ends before he or she is ready or has planned for.
In those cases where the employee feels very personally aggrieved by the dismissal, or the manner of it has caused undue financial devastation, the availability of a reasonably user friendly process to ventilate those grievances is a socially sophisticated and necessary tool.
The bad
Not all unfair dismissal cases are pursued in a reasonable manner, and when for example a small business is sued for unfair dismissal when the claim is objectively unreasonable and vexatious, it can cause untold and unjustified financial and management stress for a perfectly reasonably and decently managed business.
The ugly
The pursuit of claims by former employees which are manifestly hopeless and doomed to fail in the long run are a blight on the system and can cause considerable financial stress for a business. A job is regarded by some employees as their property and not as the property of the employer, to be managed to benefit the business, subject to decency and the laws of the land. In contrast I have been involved in cases in which the employer has trashed the integrity and good nature of an employee solely for the owner’s benefit.
Summary
Australia’s various unfair dismissal jurisdictions do a very fine job in the circumstances of managing these tensions, as do most employment law practitioners. Every now and again the personalities involved in a case may spoil the system, but that in my experience is the case in all areas of the law and is a small price to pay for social fairness in all areas or worklife.