Thursday, October 13, 2005

...if it is the last thing we ever do...

Thanks to Rob over at Red Rag for outlining the difference between Unfair Dismissal and Unlawful Termination:
Unfair Dismissal is protection against unfair treatment by your employer. It encompasses discrimination, but goes further: your sacking must not have been “harsh, unjust or unreasonable”. It includes procedural fairness, which means the employer must give you some warning that your work is bad, and a chance to improve, before they sack you. If you’re accused of misconduct, you must be given a chance to respond (but if your response is unsatisfactory they are within their rights to sack you without a notice period). Importantly, unfair dismissal claims are brought in the Industrial Relations Commission, so they’re cheaper and speedier.

Unlawful Termination is much narrower. It protects you against discrimination (on grounds race, gender, religion, politics, union membership, family responsibilities) but that’s about it. If you can make out a prima facie case, the onus shifts to the employer, who will need to show (on the balance of probabilities) that your sacking was not for an unlawful reason. You need to make your claim in the federal court, which will cost you around $25,000 — $30,000. And remember, you’re unemployed now.

These IR reforms are starting to sound better and better for the worker, don't they...

Also outlined in The Age, is a list of scenarios where things will change before and after the reforms are passed. Here is one example:
Q NOT so long ago my wife was unfairly dismissed after other workers wrote untrue bad reports about my wife's work that the management believed. She took the case to the unfair dismissals tribunal (the AIRC) and won. She was financially compensated. How would such a case go under the new laws?

A IF SHE works for a company with up to 100 employees, she will lose her protection. The Government will amend the federal laws to remove protection against unfair dismissal for employees of small and medium business — roughly half of all employees.

The Government will also override state laws against unfair dismissal. It will even make it illegal for collective or individual agreements to protect workers against unfair dismissal. Any business lodging such an agreement would face a $33,000 fine.

By contrast, if she works for a firm with 101 or more employees, her protection will largely remain. But among the changes there is one exempting big employers from unfair dismissal claims if a job is terminated at least partly because of "operational requirements". It is unclear how wide this exemption will be.

The Government will retain the rarely used protections against unlawful dismissal. But these would not apply in your wife's case.

2 comments:

Tom said...

I'm not sure how I feel about these reforms. Firstly, they shouldn't really affect me too much. Firstly because I have always had stable jobs with stable companies that appreciate my work. I am a professional after all.

I've negotiated contracts for myself since my first job.

But I DO remember getting slightly screwed by my first employer on the salary. Of course when you want a job you'd take anything, right?

Given time you take your skills elsewhere.

But what if you are an unskilled or even semi-skilled worker? What can you take to another employer that thousands of others can't?

I feel for the young people that will get screwed by this. But maybe we are all being too harsh. Maybe it will be all ok, with only a few violations?

Or maybe we are turning into an economy like America where worker's rights are low.

Hey, at least they have Sunday trading and 24 shopping. We've seen what the good people of Western Australia think of that.

Craig said...

Tom, you know it isn't you or I that will be affected by these reforms. It will be the kid who stacks the shelves at the supermarket, the person who cleans your hotel room when you go on holiday or the waiter that brings your food at a restaurant.

These people are all gonna be royally screwed at the first opportunity by these reforms. Most employers of minimum wage workers will generally only do the minimum required for their workers. Margins are tight and profits need to be maximised.