Indeed, unfair dismissal claims are consistently the most common claim year on year.
Every three and a half minutes an unfair dismissal claim is made against an employer - that’s 127 a day.
Some interesting cases HRD
has reported this year include the employee who was reinstated after being dismissed over the phone
, Chevron Australia being told to reinstate an employee who made a racist slur
and the offensive and vulgar Facebook
post which was not a valid reason for termination.
Ed Mallett, managing director of Employsure, said unfair dismissal claims have become a “growth industry of sorts”.
“With options available to employees like unions, and advocacy groups, and particularly with the rise of no-win-no-fee lawyers, it’s no surprise the employer success rate in unfair dismissal cases are dipping,” said Mallett.
“Lodging an unfair dismissal case is easier than lodging a tax return.”
In the last financial year, the Fair Work Commission
lodged a total of 33,071 applications with unfair dismissals being the most common application more than double that of any other.
Mallett added that ending an employment relationship is never easy for both the employee and employer.
“The truth is that it is no different to any other relationship break up. It is industrial divorce,” he said.
Employers must first ensure they understand and comply with the regulatory guidelines or risk a claim for unfair dismissal, added Mallett.
“It’s critical that the right process in line with the Fair Work Act is followed to the letter or employers run the risk of an unfair dismissal claim,” he said.
“If in any doubt, employers should get advice in advance of taking any steps to terminate employment. This is not a risk restricted to big business. All employers are potentially liable.”
“We hear from employers all the time that it is hard to understand what is actually required. The complexities of the Fair Work Act can leave employers exposed”.
Employers had experienced a success rate of 50-60% since 2003, peaking under WorkChoices but dropping in 2009 when the Fair Work Act was introduced.
However, arbitrated unfair dismissal claims found to be "fair" or in the employer's favour fell from 46% to 39.6% in 2015-16, according to Fair Work reports.
Since 2013, the rate has fallen below 50%, reaching 48% in 2013-14 and 46% in 2014-15.
During the same period, appeals of unfair dismissals almost doubled, from 79 in 2013-14 to 139 in 2015-16.
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Earlier in the year, it was revealed that the success rate of Australian employers in unfair dismissal cases has dropped below 40% for the first time.