Posted: May 31, 2005

Unfairly dismissing workers' rights

Monday’s Newcastle Herald carried an opinion piece by journalist Jeff Corbett which ‘argued’ that unfair dismissal laws are more accurately described as “unfair employment laws” which have “become a serious discrimination against unemployed people who want fair employment”. He then divides an unquantified share of employees into categories like ‘logs’, ‘sulkers’, ‘saboteurs’ and ‘incompetents’ claiming that these workers are “sitting pretty under the current unfair dismissal laws, snubbing the boss they know will lose an unfair dismissal case on the usual procedural grounds.”

With his classification skills, Corbett could get a job in those branches of Centrelink and the Department of Employment and Workplace Relations devoted to labelling people on unemployment benefits as ‘shirkers’ and ‘cruisers’. But he would not get a job that values research or investigation skills. Herald readers should be spared unsupported and lazy tirades on issues of national importance. While I want a spectrum of views to be published, editors should require a case to be made. Corbett hasn’t done the basic background work and has made no effort to look into what constitutes ‘unfair dismissal’ under the current legislation.

What follows is my ‘letter to the editor’ which is a necessarily brief reply. I’ll make a couple of additional points at the end.

Dismissing Corbett

In Monday’s Herald, Jeff Corbett championed the Government’s proposal to exempt employers with less than 100 employees from unfair dismissal laws. He argues that the laws protect “slouching logs” in the workplace and deny work opportunities to the unemployed. These arguments are ill-informed.

Most workers currently have legal protection against unfair dismissal. In determining whether a dismissal was “harsh, unjust or unreasonable”, the Industrial Relations Commission considers whether there was a valid reason for the termination (related to the capacity or conduct of the employee or operational needs of the employer) and whether the employee was notified of that reason and given a chance to respond. So a worker that bludges on the job can be warned about their unsatisfactory performance and be ‘fairly’ dismissed if they don’t lift their game.

We have unemployment because the Government’s macroeconomic policy generates too few jobs not because there are legislative safeguards to protect workers from being unfairly sacked. Research by the Centre of Full Employment and Equity finds that removing the laws will not assist small businesses to create jobs.

Corbett describes a “log” as an employee who “does very little and does it very badly”. His lack of effort in getting across the unfair dismissal changes is ‘log-like’ to say the least. It is not the laws that are “ludicrously imbalanced” but the Government’s reform agenda. The proposed industrial relations changes comprise a vicious assault on the rights and job security of millions of Australian workers.

Sally Cowling, Centre of Full Employment and Equity

That was all I could squish in given the 250 word limit but there are some extra points and references to offer up:

1. The Australian Council of Trade Unions (ACTU) has put out a Fact Sheet on unfair dismissal (see link at bottom of the media release) with fully referenced evidence on the small number of unfair dismissal claims taken against small businesses; the small cost imposts associated with these procedures; and the lack of credible evidence to suggest a relationship between unfair dismissal laws and employment inhibition. It is important to note that the ACTU has drawn their supporting data from the Australian Bureau of Statistics, the (soon to be gutted) Australian Industrial Relations Commission (AIRC), and Government Departments.

2. The International Labour Organisation Digest on Termination of Employment for Australia takes you through the scope of current unfair dismissal legislation; what has to be considered by the AIRC in an unfair dismissal hearing (in more detail than my letter); and avenues for redress.

3. In recent days many advocates of the Government’s Industrial Relations changes have pointed out that workers will retain the right to sue for unlawful termination (including termination on discriminatory grounds such as gender and race) and can fight sackings under common law. The problem with common law actions for the majority of workers is that the waiting lists are long, legal costs are crippling, access to Legal Aid is improbable, and the common law (unlike AIRC determinations) does not provide for reinstatement.

Corbett closed his rant with a question: Surely not doing the job should mean not keeping the job? I agree and under existing legislation workers who do not do their job can be fairly dismissed. A more considered conclusion would ask: Surely Australian workers should be protected by unfair dismissal laws if they have been sacked harshly, unjustly or unfairly?

Blog entry posted by Sally