Higher unfair dismissal claims reflect increased IR litigation under Fair Work Act: Lawyer

The rise in unfair-dismissal cases is a reflection of increased industrial relations litigation since the introduction of the Fair Work Act, a lawyer says.

In its quarterly report, Fair Work Australia said there were 3,219 applications for orders in the first three months of the year, an increase from the December quarter figure of 3,164, and 3,115 in the September quarter.

Alison Baker, partner in the employment group at law firm Hall & Wilcox, says “more and more employees are aware of their rights and the potential remedies available to them” now.

“And general protections claims are also going up, which is another remedy an employee can pursue,” she says.

General protections claims are designed to protect workplace rights and freedom of association, and to provide protection from workplace discrimination.

The Government says workplace rights include the ability of an employee to make a complaint or inquiry about their employment. Under the general protection rules, an employer must not take adverse action – such as dismissing, or refusing to hire, or discriminating against an employee – because the individual has exercised a workplace right.

An employer also cannot dismiss an employee for being on a temporary absence from work because of illness or injury.

Also not permitted is adverse action against an employee because of his or her race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibility, pregnancy, religion, political opinion, natural extraction or social origin.

General protections claims to Fair Work Australia can be made by prospective employees and both during employment and at the end of employment, but an individual cannot make a general protections application at the same time as an unfair dismissal application.

Under the general protections provisions, individuals who are dismissed are granted a longer timeframe in which to claim, with 60 days available rather than 14 for unfair dismissal.

And for general protections claims, the compensation is not capped – unlike unfair dismissal cases, which are capped at six months’ pay.

Baker says the recent Fair Work Australia figures highlight an increase in industrial relations litigation since the Howard Government’s Work Choices legislation was replaced by Labor’s Fair Work Act.

This is partly a reflection of the legislation covering larger numbers of the workforce. Baker says while Work Choices pared back unfair dismissal provisions, Fair Work is more broad-reaching, although for businesses with 15 or more employees, an employee needs to work there for six months to make an unfair dismissal claim.

Employees working for a business with fewer than 15 staff members need to have worked there for 12 months before proceeding with an unfair dismissal claim.

Baker adds that notwithstanding the increase in unfair dismissal cases, she’s not heard of delays in the system.

The Fair Work Australia report says the number of applications finalised prior to conciliation were 605, while applications settled at conciliation were 1,959. The number of cases not settled at conciliation was 523, while applications finalised after conciliation and before a formal proceeding before a Fair Work Australia member came in at 373.