Predictably, perhaps, the government’s move to reinstate unfair dismissal protections for employees in organisations with less than 100 staff is copping flak from small business reps (and lawyers who might reasonably be thought to be engaged in special pleading, since the intent of the changes is to make the process less legalistic).
Never mind the fact that there will be a twelve month probation period before the provisions apply, and that they won’t apply where there are less then fifteen employees. “Red tape!”, “uncertainty!”, “inflexibility!” are the cries. Julia Gillard and Craig Emerson are actually trying to make things easier for bosses – by removing lawyers from the process (as in the Queensland jurisdiction) to cut down costs and facilitate access, and by proposing a code for employers’ guidance. But the sticking point is apparently the suggestion that employees should be warned and given explicit details of what is lacking in their performance.
There’s something more going on here than meets the eye. Australia, in contrast to countries with a civil code, has never really had a system of individual employment rights. Traditional union collectivism wasn’t necessarily about this sort of model at all (the response to a dismissal in the old days being industrial action). There doesn’t seem to be much recognition on the part of employers and the managerial class that a jurisprudence of individual rights in the workplace is an appropriate way forward.
If WorkChoices was about anything (and the arguments linking it to “economic reform” were always spurious), it was about an anti-union crusade but also about the defence of managerial prerogative – something that has been a sacred cow for business in this country since the Deakinite settlement. Much affect seems to cluster around the sacred rights of property – and the apparent desire to treat employees like disposable property. It really is time for this mindset to change – it does no one much any good, and certainly isn’t good for business as opposed to the egos of business people. What is really wrong with having just cause for dismissing someone, and being able to articulate that? You don’t need a huge HR department to work out why you think someone should be sacked, or to realise that it’s basic fairness that they should be given a chance to remedy any problems with their work performance.
Cross-posted at PollieGraph.
The predictable chorus of business lobby bitching and moaning is completely disingenuous, considering these people managed to survive just fine in the many years preceding Workchoices. Despite the doomsayers, Australia’s economy will not fall to pieces merely because employers will need a reason to sack people.
The bigger picture issues, however, are all in the employers’ favour. Around the world, treating workers as property, labour as a commodity, and packaging casualisation and individualisation as ‘flexibility’ or even ‘freedom’ are pretty routine.
Having looked up what “HR department” means, I can state I have a HR deparment of One person.
Reason for firing someone? The business will do better without them.
If unfair dismissal laws are rerturned, it is only fair to have a similar “unfair resignation” law.
Otherwise I will take a lot of convincing that it is not just another shakedown of employers.
We’ll end up like Sweden, with everybody on temporary 3 month contracts, with only the rarest cases being renewed beyond the threshold after which staff become married to the hapless employer.
Whatever happened to observa and his wisdom from the smoko? He was obsessed with the notion that people shouldn’t be allowed to quit from his business. Of course, this is one instance where the principle of a free market should be upheld – unless, of course, the small business people of Australia (or rather, some of them) want to argue in favour of indentured labour or Masters and Servants Acts…
Why not go the whole way and introduce slavery?
Judging by your other posts, that would greatly appeal to you.
Too many threads recently are turning into slanging matches between a few people. I don’t agree with satp, but there’s no call for caricaturing his views beyond recognition, or for that matter, making comments only about his opinions. Let’s talk, civilly, about the issues raised in the post, please.
Sorcerer, that is stupid and uncalled for. Also it has no basis in fact.
Perhaps if you address the issue of the post?
it seems to me that the business councils and lawyer type were getting very used to having the govt.s ear and are bleating about their change of fortunes… But no, the sky won’t fall down and business will keep on turning over. Besides many small businesses will just return to the tired old tactic of employing everyone casually and giving the low performers less and less hours until they get the message and quit.
“Reason for firing someone? The business will do better without them.”
Care to tell us WHY the business will do better without them SATP?
“We’ll end up like Sweden, with everybody on temporary 3 month contracts, with only the rarest cases being renewed beyond the threshold after which staff become married to the hapless employer.”
Oh that is just piffle. References?
And also, why do righties always hold up the spectre of Sweden as some kind of closed-market boogeyman, waiting to engulf us if we don’t brush our teeth or pay more than two bucks an hour?
I don’t get it. We could do a lot bloody worse than Sweden frankly (hello America!), and if you don’t think so, you’re an idiot straight and simple.
In places where I’ve worked those who are clearly not doing their job quickly accumulate valid reasons for dismissal. I guess it’s the borderline cases where small-business-people are going have trouble with this and having a large percentage of employees with mediocre performance but no really glaring reasons for dismissal could be quite a drain.
Having watched a few small organisations struggle with retaining staff – and not always because of poor working conditions or pay, often due to personal reasons etc – I can see where SATP is coming from in wanting to prevent staff from moving on as well. Of course you can’t have it that way, but it’s understandable from the operators perspective.
Much of the discussion assumes that business owners and people employed as managers make rational decisions based on a dispassionate analysis of what is in the commercial interests of the business.
It’s a wonderfully idealistic model that unfortunately bears no resemblance to what happens in real organisations.
Agreed, Ken, and I suppose policy can’t be built on that assumption in this case any more than in other areas. I’ve met one or two business owners who conspicuously sabotaged their own businesses through a combination of stupid assumptions (about why they had less customers, for example) and by displacing their own faults onto their staff. You only have to watch ‘The Chopping Block’ to be corrected of the assumption that passion plays no part in small business.
Chris Dillow on the blunt instrument of the law:
I’m unconvinced of the basic citizens’ income as a policy, but his points about the ability of workers to tell their boss to shove it, and about the superiority of unions to legislation as safety nets, rings very true. It’s a very lucky worker who’s in a position to leave their job without serious consequences.
“Much of the discussion assumes that business owners and people employed as managers make rational decisions based on a dispassionate analysis of what is in the commercial interests of the business.”
Correct. The big stinker there is the managers who aren’t proprietors, many of whom I’ve seen making hiring and firing decisions with a major component being what makes them look good or their job easier. Owners are much more likely to at least make a genuine effort to get it right – even bad ones will try.
On the contrary. Read the quote from the article.
That’s why we have unions and a large component of the Government which acts as a corporate watchdog. That’s why we need unions and a large component of the Government which acts as a corporate watchdog.
Have little or no sympathy for grasping, greedy petit-bourgeois shop-keepers who have no empathy with their staff. I many empoyers stoped treating their workers like slaves. and behaved in a decent manner instear of aspiring greedy little capitalists, theselaws wouldn’t be necessary. They’re being brought in because workers’ rights and conditions, including arbitrary sacking are being continually abused.Under Howard bisse4s revelled in the dog eat dog society that monster encouraged. Tough fellers. It’s over. Live with it!
“Why did I throw that person in jail? Your Honour, he was a Bad Guy!”
…
“What do you mean you want evidence and reasoning before ruining someone’s life?”
“I many empoyers stoped treating their workers like slaves. and behaved in a decent manner instear of aspiring greedy little capitalists, theselaws wouldn’t be necessary”
On the contrary Paul. It is precisley the law, designed to make public policy enforceable, that will ensure decent employers don’t have to treat their employees the way that employers untramelled by any regulation, would quickly force them to. That’s why democracies have labour law and regulation, and less democratic and/or corrupt polities have either no law at all, or law which prevents hirees from determining any matter at all about how they are to be treated when earning their right to be fed, clothed, sheltered and generally entertained.
Slavery is a far more onerous, expensive, unwieldy and ultimately dangerous mode of production, than a polity where we can all decide, via the ballot box, just how much time and effort we are prepared to devote to ensuring we can all claim the mantle of ‘liberal and democratic’. It’s a no brainer.
The problem with unfair dismissal before was that it often resulted in bad employees gettiung compensation, merely because the employer hadn’t correctly followed the procedure. Ken refers to ‘real organisatoions’. In real small businesses, there isn’t a specialist HR manager, there are no industrial relations lawyers, there’s just some person who owns a garage, a shop or a restuaurant, and knows when someone is underperforming and won’t change, before they are sacked, often without written warning.
The AIRC was also notorius for reinstating people after they had stolen from people, or when they had resigned, and other absurd circumstances.
Although I favour limited unfair dismissal rights, the old formula was flawed, and would have to be reformed in order to make the laws more balanced.
ONE MORE THING:
“Never mind the fact that there will be a twelve month probation period before the provisions apply, and that they won’t apply where there are less then fifteen employees.”
In fact, it was for employers hiring less than 15 people who would be given a one year probation period for new employees. The laws, as Labor has detailed them, will apply to all corporations and other organisations which fall under Commonwealth workplace powers.
1. In cases where the employee had committed theft were the police informed? If not why not?
2. If a person had resigned without giving notice, how is it then a “resignation”? So was the employer aware that he/she had a duty at law to inform the employee on commencement of their conditions of employment (including the time required for notice), to organise an AWA or other contract, and to make appropriate arrangements for PAYG and the superannuation guarantee where appropriate.
You see the problem is Leon with you pro-Liberal blowins, you come up with throwaway lines all the time with nothing to back them up. I’d like to actually see some stats, though I am aware that the previous Government was not to willing to give them out, before or after SerfChoices, even to Julia Gillard’s office.
So we only have your word for it. Not enough.
the info i have referred to is on the net.
Go do some homework and find it for yourself.
That would be enough.
Probably not. Because, fortunately, we are not a police state. Most cases of employee theft leading to termination are petty theft. While that petty theft is sufficient to destroy the trust that underpins the contractual relationship, and therefore would lead the employer to sack the employee the employer would generally be seen as a complete bastard in then referring the employee on to the police for prosecution. The police would not appreciate it either being tied up in pursuing petty crime when they are stretched in their resources in pursuing serious crime.
No they are not. The AIRC have a pretty good record of handling cases of employee theft. The few cases where they order reinstatement typically involve situations where the theft is so trivial (eg of a sachet of complementary peanuts which would, in the ordinary course, be thrown away anyway) that the termination of the employee defies commonsense or where the employer’s investigation leading to termination has been so botched and prejudicial that any reasonable person would be left wondering whether a theft has taken place at all, let alone whether the sacked employee was responsible for it.
I think that what Leon is referring to here is “constructive dismissal” where an employee resigns then later claims harsh, unjust or unfair dismissal on the grounds that the resignation was forced by the oppressive circumstances of his or her employment forced that resignation.
There is nothing at all in law that says a resignation without notice is anything other than a resignation, which an employee is entitled to give at any time. We left serfdom behind in the sixteenth century. There are some marginal issues about the agreed period of notice but they don’t attract the AIRC’s jurisdiction.
If you report the theft, in NSW anyway, you get a TRIM number which you can take to a Commissioner. This proves the employer’s good faith, since there are penalties for providing false information.
If a theft has occurred and has not been reported, in the eyes of the law (and hence those of the Commission) there has been no theft.
That is unless you are assuming that any employer who fronts the AIRC is automatically a paragon of honesty. I know you, I and the Commission know much better than that.
Based on what my experience, ANY employer who fronts the AIRC is a paragon of honesty compared to a union or employee.
In fact, I have never seen a union or employee fronting the AIRC yet who aren’t lying through their teeth.
But that was “unfair dismissal Mark I”.
Hopefully “Unfair dismissal Mark II” won’t be a way for unions & unscrupulous staff to legally shakedown small employers (as was the case with Mark I)
I reserve the right to cease writing paycheques any time I wish.
Just because I write a paychque this week I am not going to submit to a law which forces me to write the same paycheque next week.
Any why should I?
Because it’s the law. And if an employer rips off his/her employees, treats them unfairly and lies to the authorities, the employees will walk.
Then customers hear about it, and he/she loses business. And shows that he/she lacks integrity, ethics and honesty.
And by the number of employers around who do the things I have listed, there is a lot of lack of integrity, unethical behaviour and dishonesty around in the business world.
“Why not go the whole way and introduce slavery?
Judging by your other posts, that would greatly appeal to you.”
Ah, another deeply thought out comment. To match the stupid and un-called for one posted earlier in the thread.
No law can madate that I pay money ad infinitum, even if I am receiving something in return. NO LAW. It can only attempt to legislate for fair treatment.
Put that in your pipe & smoke it.
That is utter bullshit. You come across as one of those bullshit commenters who are so completely ignorant of the law and the principles on which it operates that you think it’s OK to make it up as you go along.
I have never seen, in the thousands of Commission decisions I have read, a single case of a dismissed employee, where the basis of that dismissal has been for theft, using that argument. No self-respecting advocate would try it on before the Commission because they know they’d be laughed at.
But please do continue with your ignorance. It’s giving me a laugh.
Going off topic for a moment Why not introduce slavery?
Because it isn’t the most efficient way to extract maximum value from your average carbon resource unit compared to more modern methods.
If you keep a slave you save a lot on paying them direct income. However you are now resonsible for their welfare to a degree. You have to shelter them. Feed them. Pay their medical bills. This might end up costing as much if not more than paying an employee.
However, lets look at the alternatives.
We could get rid of the minimum wage, create a punitave welfare system and lower/cease union involvement.
Essentially you end up with a slave that you might have to share with one or two other captial owners (said carbon resource unit might have to work 2-3 jobs to cover shelter food and medical.)
But you don’t have to worry about personal entanglements. And if they have problems bingo just sack them get another.
It truely is a brave new world.
“If a theft has occurred and has not been reported, in the eyes of the law (and hence those of the Commission) there has been no theft.”
Last night there was a theft at my place. An employee was ostentatiously drinking a particular brand of bottle in the bar at closing time.
No sales of that brand were registered yesterday. Thus the drinks (there were quite a few) were stolen.
The police are not interested, as they state that a prosecution will never get off the ground, based on experience of the law I believe them.
What should I do? I have no doubt this is theft, and I can satisfy any future employer this person may apply to that this person stole from me.
The theft was deliberate. The theft is obvious. The incident is far from a one-off, which is how I detected it. The employee will be dismissed between midday & 2pm (when they get out of bed).
Today, as in the days prior to unfair dismissal, the employee either accepts their fate quietly, or calls the union.
If the union is called an rep will call on me, ask if I have a comment, I show the evidence, the union rep closes their briefcase and says “you’ll hear no more of this” and leaves. VERY routine. Except that I am not able to collect payment for the stolen liquor. (I do, and lawfully, but only due to having been “caught” before in similar circumstances, it isn’t easy to collect)
In the days of unfair dismissal I am not sure what happens, as the exact scenario never arose for me. I would hope that the outcome would be the same. But I am not banking on that.
So in your opinion the AIRC operates with different standards from that of the rest of the legal system, i.e. it accepts uncorroborated evidence?
So in other words if I went to the AIRC and said “SATP stole from me” that they would accept it without a police report?
How can you as an employer be trusted to tell the truth when the rest of the community have to fulfil the burden of proof?
Just showing your utter ignorance of the legal system again. All jurisdictions accept uncorroborated evidence. The legal system would not function if only corroborated evidence was admitted. I don’t think you have even the slightest clue of what “corroborated” means and it’s transparently obvious that you know nothing at all about the Rules of Evidence.
Keep at it though. It’s keeping me laughing.
You’re not trying to satisfy a court, sorcerer. SATP wouldn’t have to go through onerous steps if an employee was just incredibly shit at their job, or didn’t turn up; both sacking offences, neither criminal offences.
I’m not sure you understand what the AIRC is or does. It’s an *industrial* tribunal, not a court.
In my experience the Industrial Commissioners make up their mind before they see ANY evidence. Hopefully not everybody’s experience is the same.
Oh I do understand. I am not satisfied however that such a tribunal is supposed to be operating outside of what we accept as minimum legal standards. Surely this makes them subject to litigation down the track.
There are plenty of tribunals which operate outside of what we accept as minimum legal standards.
Never mind various tribunals & commissions (claytons star chambers all), it would come as a shock to many Australians were they to learn just how much of what happens in a court in front of a Magistrate is outside minimum legal standards.
I think I do understand. And one of the first principles is to determine if an offence has taken place. And lacking physical evidence or witnesses, a report of the offence to the authorities at least has the effect of ensuring the good faith of the complainant, whether or not sufficient evidence exists to ensure the offender is ever prosecuted.
Otherwise anyone could be making up anything for any reason, and we know that employers are not beyond doing that.
Then you are ignorant of the legislation under which they operate which typically allows them to admit hearsay evidence which would not be admitted under the rules of evidence in a regular court. And no this does not make them subject to litigation down the track. Public officials such as Industrial Relations Commissioners have immunity for their exercise of their public functions.
Steve is right up to a point that the AIRC sometimes operated poorly. However, the hope is that “Fair Work Australia” will be different. The model is much more the QIRC than either the AIRC or the NSW jurisdiction, incidentally.
And it’s also true that what goes on in Magistrates’ courts has little resemblance to what we normally think of as “legal standards” – ie what you get in jury trials before a District Court or the Supreme Court. Most tribunals, as is correctly stated, don’t operate with the strict legal rules of evidence and some try not to operate in an adversarial fashion. And there’s usually no risk of litigation because they’ve been established precisely to avoid such disputes being litigated and rights of appeal aren’t there or are narrow.
The big problem (well, one of them!) with WorkChoices was that complaints regarding unlawful termination (note – not unfair dismissal) had to be litigated before a Federal Magistrate or the Federal Court rather than being resolved more expeditiously and inexpensively in a tribunal.
“So in other words if I went to the AIRC and said “SATP stole from meâ€? that they would accept it without a police report?”
You’re looking at this from the wrong angle. You are placing a lot of value in police reports. Why, I’m not sure. There are always going to be “he said, she said” scenarios before tribunals. The paper trail might be relevant, but it might not amount to much from an evidentiary point of view. Sooner or later the accuser will have to get up and say it out aloud. And, if they exercise their right to speak in their own defence, the accused will then get up and say their version out aloud. It is the task of the tribunal to determine which is the more credible witness, and weigh the available evidence in view of the conclusion. Sooner or later a real life person (judge) will have to call another real life person (a witness) a damned liar, either expressly or by implication.
Cheers
BBB
It’s also worth mentioning that prosecutions requite a standard of proof of Beyond Reasonable Doubt in order to be succesful. Tribunals ordinarily only need a balance of probabilities.
If you can’t prove beyond reasonable doubt, there is no point in going to the police. On the other hand, this certainly does not exlude the possibility that it in fact happened.
I note the emphais on police reports. I once worked in insurance where I would look at police reports, and often the findings of fact/opinions offered by police offers are ridiculous. One case of a traffic accident had no witnesses or corroborating evidence and yet the police officer still look one’s side version of events over the other’s, even though they were equally plausible.
“It’s also worth mentioning that prosecutions requite a standard of proof of Beyond Reasonable Doubt in order to be succesful. Tribunals ordinarily only need a balance of probabilities.”
This will be why those who are faking unlawful dismissal claims want decisions on such taken outside the court system.
Is receiving a payroll tax bill lawful grounds for dismissing an employee?
It certainly is actual grounds for reducing staff (price of labour has gone up by the cost of one person, ergo, one person has to go)
There is the danger of that anyway when it seems an employer can simply front up and say “So-and-so stole from me”.
At least a TRIM file, as we call them south of the border, will give the appearance of honesty on the employer’s part.
From what I have seen recently, they should be going before authority with as much evidence as they can get.
Sometimes the circumstances of an accident are so bizarre and statements taken from those involved so incoherent as to render them seemingly useless, but at least insurance companies processing motor vehicle claims insist on them.
This is the problem with unfair dismissal legislation. Prosecution grade proof is required for an employer to avoid a severe penalty for cutting out a theiving cancer from their business.
However such a standard of proof is not so easy. Even a red-handed catching is nothing more than a “did/didn’t”, though both parties know the theft happened & the dismissal is justified.
With the theft last night I have cast iron proof, even though the police will not prosecute, and I would not expect an unfair dismissal claim. But most theft is not so blatant or so easy to prove. Neither can theft be allowed to continue. Any steps taken to “warn” or “reprimand” employees are unworkable when employees are handling cash & small scale untraceable valuables (ie, liquor).
There is very little which can be done about someone who does not care about their reputation and good name, has nothing to lose by losing their job, has been in jail & not concerned about going back there, and is more or less itinerant with no more assets than a change of clothes & whatever wages are owing.
Leaving such a person handling the cash register is untenable for a small business.
But this is what the unfair dismissal laws demanded of us before. To leave them there and “counsel” them into becoming a better employee.