Employer success rate in unfair dismissal cases hits historic lows

Wednesday 13 September, 2017 | By: Default Admin | Tags: Fair Work Commission, Fair Work Ombudsman, Unfair Dismissal

The success rate of employers in unfair dismissal cases has dropped below 40% for the first time, according to new figures.


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Employers had experienced a success rate of 50-60% since 2003, peaking under WorkChoices but dropping in 2009 when the Fair Work Act was introduced.

However, arbitrated unfair dismissal claims found to be "fair" or in the employer's favour fell from 46% to 39.6% in 2015-16, according to Fair Work reports.

Since 2013, the rate has fallen below 50%, reaching 48% in 2013-14 and 46% in 2014-15.

During the same period, appeals of unfair dismissals almost doubled, from 79 in 2013-14 to 139 in 2015-16.

Former vice-president of the Fair Work Commission Graeme Watson said in an opinion piece in the AFR that legislative reform is the only answer for protecting employers against illogical unfair dismissal decisions.

Watson compared Australia’s industrial relations system to the UK’s approach of considering whether an employer acted “within a band of reasonable responses” is a better alternative to the FWC's approach. This determines both the fairness of process and whether the impact on an employee is harsh or not.

“The result is a series of Catch-22 situations” where even though employers are doing the right thing they can be asked to pay compensation or reinstate the employee, Watson said.

“Legislative reform has become necessary.”

Watson resigned early this year due to what he believes is a biased system that doesn’t “promote economic prosperity or social inclusion”.

"I have made this decision because it is increasingly clear to me that the operation of the workplace relations system is actually undermining the objects of the Fair Work legislation," Watson said in his letter to the Employment Minister Michaelia Cash.

"I do not consider that the system provides a framework for co-operative and productive workplace relations and I do not consider that it promotes economic prosperity or social inclusion. Nor do I consider it can be described as balanced.”

This is a copy of an article published by Human Resources Director Australia on 17 May 2017.

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