Unfair dismissal changes find favour

by 05 Aug 2008

ALMOST HALF of HR and workplace relations professionals approve of the proposed changes to Australia’s unfair dismissal regime, according to a recent Deacons survey.

Forty-nine per cent of respondents were in favour of the proposed new procedures, while a further 22 per cent of respondents remained unsure.

The Federal Government is proposing to overhaul the unfair dismissal regime in an effort to speed up the process of claims through the system.

Under the current regime, parties first attend a compulsory reconciliation and, failing success there, will move onto a formal hearing at the Industrial Relations Commission. Parties at the hearing have the right to legal representation, can call and cross-examine witnesses and make submissions.

However, under the proposed new system, which is scheduled to be released in a bill this year, unfair dismissal will be brought into the domain of a new body – Fair Work Australia. Parties will attend just one, less formal, hearing in which a public official will try to simultaneously mediate and determine the claim.

“This is where it gets very interesting – where we get something that’s quite different from the operation of legal processes as we’ve traditionally understood it,” said Deacons partner David Cross.

“You’re going to have this meeting where everything is basically up for grabs – where the official will be trying to encourage the parties to meet on common ground, and at the same time, form views about which set of facts is more likely to be plausible. And this is done on a basis that doesn’t involve people giving evidence in some formalised way.”

According to Cross, one of the biggest issues with this new system is that parties won’t be able to call witnesses and cross-examine evidence.

“One of the main concerns that people could have about this is how on earth is this [official] meant to come up with a final and binding determination when the only people who are in front of the official are the parties?” Cross said.

“The emphasis is apparently going to be on saving time, but … you’ve got to be careful about how you save time lest you finish up making it extraordinarily difficult for the person to arrive at a decision that’s going to command some level of respect and legitimacy.”

Another concern Cross has is that parties won’t have the right to legal representation; a proposal which he believes is aimed at reducing the time and complexity of the hearings.

“I think the interesting thing about this is that the prevailing assumption seems to be that if you involve lawyers, all you get is delay and technicality,” he said.

“Some would argue that presents an unfairly malign view of what it is that lawyers do, because … lawyers are also capable of narrowing the issues and putting some kind of shape on it. [This] is particularly important in a jurisdiction where what’s being judged is fairness – a notoriously wide concept at the best of times.”

Cross said that he was surprised at the level of support for the proposed changes that was demonstrated by the results of the survey.

“Personally I was interested that the figure was as high as [49 per cent]. And the people who completed the survey know a fair bit about what the system will look like – and certainly the fact that it’s going to be a radical departure from the current system was not lost on them” he said.


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