The Fair Work Stress Test
Too often, businesspeople are pressured into making their HR problems go away with secret payments to disgruntled staff. But is that simply feeding an insatiable beast?
Being taken to the Fair Work Commission is most employers' worst nightmare. The stress, reputation-damage and disruption to your ongoing operations is often enough to make bosses at least consider paying the complainant to drop their grievance, especially when the employee in question is the one suggesting that course of action.
The first thing to know is that businesses with fewer than 15 employees get special treatment when it comes to unfair dismissal. In most (but not all) cases, a staffer cannot bring an unfair dismissal action if they've been employed by these smaller businesses for less than 12 months.
Even if this exemption doesn't apply, there is good reason not to give in to blackmail. Our advice, if things get to that point, is to play it by the book instead of asking: "How much will it take for this to go away?"
The Fair Work Commission deals with thousands of unfair dismissal and adverse action claims every quarter. Knowing it simply cannot hear them all, it tries to move the majority through a conciliation process. Indeed, nearly 6 out of 10 claims from Quarter 3 this financial year were settled this way.
The key figure is the conciliator, someone who impartially advises both parties where they sit in relation to the functions of the commission and the rules of the Act.
Once both parties have this knowledge, both usually see it is in their best interests to seek a win-win situation via conciliation.
Facing a claim
Senior advisor at CCIQ’s Employer Assistance Line Jason Wales, says the first thing employers facing a claim should do is get advice.
“People call who have just received a claim and they're so scared because they don’t know how it works,” Jason says.
“It is about having the knowledge of how the process goes about.”
The process itself is impartial and non-confrontational – most of it happens over the phone via the conciliator. Of the 3,622 Quarter 3 claims mentioned earlier, only 365 went to a more formal arbitration, and only 35 of those were ultimately upheld.
Even with their 90 per cent success rate at arbitration, employers dread the lost productivity of having to appear in person, usually with counsel, for days – even a week – before the commission. On the other side of the fence, this time out sometimes also hinders the applicant's search for a new job.
Jason's advice is to avoid letting things get this bad in the first place. Even for minor matters, engage in fair performance management on every matter that affects workplace productivity.
If you don’t pay attention to them, these tremors can build into an earthquake.”
If you are threatened with a claim, though, paying cash under the table is likely to just make matters worse.
CCIQ's Employer Assistance Service helps small businesses resolve around 500 of these issues every month. For expert advice, call us on 1300 731 988 or go to CCIQ Employer Assistance to learn more.