Time to Embrace 'No Fault' Dismissal

By Collier, Grace | Review - Institute of Public Affairs, January 2011 | Go to article overview

Time to Embrace 'No Fault' Dismissal


Collier, Grace, Review - Institute of Public Affairs


We have ?no fault' divorce, so why don't we have ?no fault' employment dismissal, asks Grace Collier.

'Every time I get fired I go out and buy myself something', jokes Joan Rivers, the American comedian, describing her regular response to being sacked.

When Australians are fired, the first thing they are encouraged to do is to race off to Fair Work Australia to launch an ?unfair dismissal' claim. This is not to trivialize the loss of employment but more an observation of how some cultures accept that getting the sack is a part of life, whilst others see it as an event so objectionable that it warrants instant government intervention.

Employment is a relationship, a very important one; but like all relationships the only guarantee it contains is that one day it will end. Dismissal, resignation, redundancy or business closure will see all Australians one day put out of their jobs. So it is with marriage too, but when the relationship of marriage ends, people don't insist that the government steps in to make a judgment on whether the separation was ?fair' or not.

Society progressed beyond that a long time ago with a concept called no fault divorce, a model that accepts the routine ending of adult relationships. The idea that government today could intrude, examine and determine whether a divorce was ?fair' or ?unfair' just would not be tolerated. The notion that the government could forcibly ?reinstate' a marital relationship is laughable. So why has the community given the government the ability to trespass onto the circumstances of the employment separation event and force businesses to re-employ workers they have sacked?

The legal definition of ?unfair dismissal' was introduced by the Keating Government in 1994. Now, the new broadened unfair dismissal scheme has seen applications skyrocket by 63% in the first year of the ?fair work' system. Employees can resign with no notice and put in an unfair dismissal claim, stating that the workplace was so awful that they had no option but to resign, therefore creating a ?constructive dismissal' situation. Employees made redundant can keep the redundancy payout but challenge the redundancy process through an unfair dismissal claim and keep any winnings from that process as well. Every working day, regardless of fairness, truth or the merits of their case, Australian employers collectively pay somewhere between $80,599 and $127,805 in ?go away money' simply to avoid government arbitration. Is this a new tax on business and is anyone-other than employment lawyers-winning?

When legislation dictates every employment separation can be categorised as either ?fair' or ?unfair', the objective of newly dismissed people is to prove the dismissal was ?unfair', thus channeling them onto the conveyor belt of a legal dispute; a process that prevents moving on and encourages them to wallow in anger, self pity and delusion about the circumstances of their unemployment. After all, if a person intends to convince a judge of their story, they must convince themselves first.

When a person puts in an unfair dismissal application it is as though their life is on hold, processes of healing, hurt and moving on are stalled as they wait months for the arbitration; they anticipate their day in court will deliver justice and emotional validation. They often don't look for another job. They are incentivised to remain unemployed; to go to arbitration without income will ensure any compensation will be greater. Their life focus becomes to build their case, the minutia of their evidence, calculating how much money they will walk away with after legal fees are paid. Their expectations are of financial recompense, fed by their representatives-mostly irresponsibly. Their expectations are also that their emotional hurt will be somehow be healed; they fancy that the judge may stand up, look them in the eye and pronounce ?you were treated terribly, you did not deserve it and I am so sorry', bang the gavel loudly and they will suddenly feel much better.

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