Maybe it’s time for unfair dismissal guideline decisions

Courts and tribunals in Australia have a historical reluctance to express what are described as “advisory opinions”. In other words, courts will not consider and express a view about a controversial aspect of the law, unless a genuine dispute between two parties comes before the court or tribunal for determination.

The significant increase in unfair dismissal cases signals that it may be that the time has come for Fair Work legislation to allow Fair Work Australia the scope to issue guideline decisions. Such decisions could set out a range of considerations which employers should take into account before terminating any employee in particular factual circumstances, in order to help them avoid unfair dismissal claims.

Two recent decisions of FWA illustrate that there remains potential for confusion about what standard employers are to apply to the conduct of their employees.

Recently on SmartCompany, Andrew Douglas wrote about the trend in cases involving serious breaches of well-known health and safety protocols. There may have been a time when such a breach would unquestionably have justified termination of employment. But the law on this issue now seems a little confused.

Recently, a truck driver guilty of traffic offences while driving his employer’s vehicle – including taking video of traffic accidents on his mobile phone while driving – survived by the skin of his teeth. His other conduct included a refusal to complete paperwork required by the applicable road transport and occupational health and safety legislation. FWA rightly criticised his conduct, but refused to endorse the employer’s decision to terminate his employment. The employee was reinstated, but was penalised by not receiving wages lost between termination and the decision to reinstate.

In its own circumstances, there are numerous bases on which the decision could be justified as legitimate and in accordance with principle. And maybe this is the problem. This is a case that could have been decided either way. Neither the employee nor the employer have any certainty until the matter is determined by FWA. By then a lot of time, effort and money have gone under the bridge. The employee has to resettle into a workplace which may or may not be very different to the one he left.

Of course, issuing decisions which offer employers and employees guidance is only half the picture. As the Small Business Fair Dismissal code has shown, having more rules doesn’t make things easier. The legislation should equip administrative staff, or members of the Tribunal at conciliation stage, with greater powers to dispose of claims, where the termination occurs within the guidelines.

Of course, not everyone is agreed that there should be a system which protects employees from capricious termination. Various “small business” exclusion models, installed by both sides of politics have failed to achieve an appropriate balance. Maybe it’s time to revisit the notion that there should be a right to an expensive and adversarial means of determining disputes about termination, and still enable employees to have their “day in court”, by rewriting the rules on unfair dismissal.

Of course, this piece is only the germ of an idea and can’t go anywhere near a comprehensive answer. The lesson for employers – and employees – you need to encourage the legislators to think outside a square with increasingly ragged edges.

Peter Vitale is a lawyer who has his own practice focussed on employment and industrial relations law. Find him at www.petervitale.com.au