Cooper Grace Ward partner Annie Smeaton told HC Online that varying decisions had been an ‘issue for some time’ when it came to dismissals.
Smeaton said this included Commission rulings on what is a harsh, unjust and unreasonable reason for termination as well as on procedural fairness.
“That can cause confusion for an employer over whether it will be deemed an unfair dismissal or not,” Smeaton said.
Smeaton said while the Fair Work Commission “does a great job” of ruling on unfair dismissal cases, the nature of the laws themselves meant there was often a lot of discretion involved in the decisions being made.
There were also a large number of cases being heard, which combined to result in the Fair Work Commission sometimes delivering varying rulings.
“It does make it harder for employers, to know if they have done things the right way or not, if they are taking a risk or not,” she said.
However, Smeaton said the main remedy for employees that has taken over from unfair dismissals is the Fair Work general protection provisions.
She said the interpretation of general protections was “still playing out”, and that cases were still determining the “breadth of those laws”.
“I have run a few to trial; they are very broad in terms of what can be a workplace right,” she said. “For an employer that is another layer of risk and regulation to take on board, which is really difficult for them.”
Smeaton suggested one area of the unfair dismissal laws that could be improved was the definition of a small business as having fewer than 15 employees.
“A business that has 15 employees or over can still be considered a small business,” she said.
There were 4048 unfair dismissal cases in the September quarter last year, followed by 3768 in the December quarter and 3510 in the 2014 March quarter.
This compared with 879 general protections cases in the 2013 September quarter, 900 in the December quarter and 880 in the 2014 March quarter.
Decisions from the Fair Work Commission on unfair dismissal cases are continuing to at times cause employer confusion, one lawyer claims.