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EMA Consulting Networking session 

6 December 2018

Presented by Ashleigh Smith – Director, EMA Consulting

EMA Consulting’s latest networking session on the 6 December,reviewed a selection of Unfair Dismissal cases from the past 12 months, as well as discussing current trends and statistics.

Unfair Dismissal has three key factors to consider: unjust, unreasonable and harsh. In other words, when the Fair Work Commission (FWC) is reviewing an unfair dismissal claim they will assess if the employer had a valid reason, followed fair process and if there are any mitigating factors.

Issues with valid reason are typically the same – the employer has not applied its policies nor rules consistently, therefore in the eyes of the FWC, rules don’t exist.

Over the past 12 months, the biggest shift has been with mitigating factors and this area has had the most impact on decisions. Employers often think they have the process right but do not consider the employees personal and economic consequences, or the fact that the employer’s decision may be disproportionate (due to a biased view) to the gravity of the misconduct.

Some of the key statistics:

  • Approx 20% increase in dismissal related general protection claims over the past four (4) years. Employees who are not protected from unfair dismissal, (eg within their minimum period of employment) have more awareness of the law (thanks to the internet), are better educated about their options, and there is a reverse onus of proof in this jurisdiction.
  • Approx 2/3 of all Unfair Dismissal applications are getting outcomes at conciliation. A significant proportion of these have money involved as employers, amongst other things, may be making commercial decisions to settle, irrespective of the quality of their case.
  • Of those that go to arbitration, the success rate for employers is only 39% and appears to be declining over the past four (4) years. Why? Practitioners may not be keeping up with FWC decisions and application of the relevant provision of the legislation.  Put simply, employers are not on top of developments and considerations of the Commission!

In summary, employers must make sure that when dismissing an employee that the tests for harsh, unjust or unreasonable have been properly considered and applied in their respective decision-making processes. If employers are unsure, seek advice.

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