How fair are our unfair dismissal laws?

IF tomorrow when you arrived at work your boss suddenly and unfairly sacked you, how strong do you think your legal protections would be?

Do you think they would be strong enough that you could reverse the sacking and win your job back? To answer that question, we really need to look at the latest data published in the Fair Work Commission’s recent annual report.

It reveals that of the 13,945 unfair dismissal applications finalised in 2012–2013, just 20 orders of reinstatement were made while 132 others settled for reinstatement at conciliation.

This means in all of Australia, only 152 people out of 13,945 people were able to win their job back through the Fair Work Commission after being unfairly sacked. So to answer our question, this data tells us if you believe you have been unfairly sacked, you stand just a 1.09 per cent chance of winning your job back under our current industrial relations system.
Almost impossible to get your job back
Even after the abolition of WorkChoices these figures show us that the truth remains no matter how unfairly your employment is terminated, it is nearly impossible to get your job back — regardless of the circumstances of your termination; regardless of your length of service; and regardless of any appeal process.

One of the main reasons so few working Australians are able to win their job back is because too many people are forced to settle unfair dismissal applications at or before conciliation for small amounts of compensation.

It is within the statistics that the hardship stories of those who attempted to get their jobs back are told. People like National Union of Workers’ member, Pakpao*, a Thai migrant with limited skills in English who worked daily as a casual employee at a processing plant for four years.

She was in her late-40s with two adult children who still live with her and earned just above the minimum wage. She was loyal to her employer. She always did what was asked of her. She worked with care, quickly, courteously and without complaint. For four years she was by all accounts the ideal employee.

Pakpao thought she had a job she could count on. It was hard work — as a casual she had no personal leave or annual leave — but she counted on her job not only for financial security but also because she understood the insecurity that went with her race, her difficulties with the English language and being the only female in that area of the factory.

It was when a new supervisor was employed who bullied her to tears that she complained to management. After a quick company investigation, Pakpao was sacked for ‘causing trouble and not meeting her productivity targets’.

The reality for most workers, but especially insecure workers, is that they cannot afford to get their job back.

Pakpao’s case was settled at conciliation for the equivalent of three months pay or half of the maximum compensation payable. She accepted this payout, out of necessity. The merit of her case was strong. She was advised that should she continue to hearing it was highly probable that she would be reinstated and receive compensation.

In Pakpao’s case she waited eight weeks for a conciliation date. There she was informed that she would have a jurisdictional hearing to overcome to determine her a regular and systematic casual employee; this added 12 weeks to her timetable.

After that was decided, her substantive hearing would proceed some eight weeks after the decision of the jurisdictional hearing. Pakpao would have been lucky to have had a decision concerning her future employment some 11 months after she was sacked. That decision may also have been subject to appeal.

Sadly, many officials at the National Union of Workers can recount similar high merit cases where members have decided to settle at well below what they may have otherwise received together with reinstatement to their job.

The reality for most workers, but especially insecure workers, is that they cannot afford to get their job back. We know of members who have endured vexatious appeals initiated by employers who cannot accept a reasoned decision of the Fair Work Commission: the body in this country that for over 100 years has balanced the needs of capital with labour.

Insecure workers like Pakpao count on her union to resource and advise her. Her 1.09% chance of reinstatement would otherwise be closer to 0%.
Pressure from employers for changes
It is against this disproportionate statistic that the Federal Government is being pressured by employer groups and vocal right-wing groups like the HR Nicholls Society to change processes and appeal mechanisms in the Fair Work Commission. The outcome sought by these groups will make it even more difficult for working Australians to have access to fair outcomes.

The Employment Minister, Senator Eric Abetz has foreshadowed these changes by calling for submissions on the ‘operation of current appeal mechanisms and how they could be improved, including views on possible alternative appeal processes.’Changes to the appeals mechanisms in the Unfair Dismissal jurisdiction will further diminish the 1.09% chance that you currently have of being reinstated to your former position.

Senator Abetz has spoken about these changes to the Fair Work Commission in the technocratic language of political processes and industrial relations. This detail is unlikely to hold the attention of the general public — and I suspect he knows that.

My concern is that this technocratic speak is masking a real threat to job security. If changes to the Fair Work Commission are being suggested then there needs to be a broad public conversation about what we do and don’t have access to under our current industrial relations system and what rights working people believe are fundamental to a fair Australia.

* Not her real name