HC Online published an article confirming the statistics of employer success results at Fair Work. Many people (including an ex Vice President of the Fair Work Commission) have felt that the system is biased against employers.
Impressions of bias include the complexity of the system, perceptions that employees “win” more cases than employers and the reverse onus of proof concept (where rather than innocence being assumed, employers must prove that what was alleged did not happen)
The article is here – http://www.hcamag.com/hr-news/employer-success-rate-in-unfair-dismissal-cases-hits-historic-lows-236490.aspx
Effectively the article states that less than 40% of cases in 2015-2016 were successfully defended by employers. This is a decline from 50-60% in 2003.
Should we lose hope as employers? Definitely not!
The article itself probably has bias as you can imagine. With a contribution from an ex Vice President who left claiming that the system was imbalanced, his comments are likely to follow the same thread.
What ought we to be looking for from this article?
1. Reinforcement that it is not just about doing the right thing – having proof and evidence of doing the right thing is important
Remember that proof of what happened is equally required by both parties. An employee who makes claims or allegations must be able to establish before the Commission that what is claimed did or was highly probable to have happened
2. Decisions to terminate employment must never be taken lightly or when in an emotional state.
The concept of “fair” is underpinned by words such as “reasonable” and while not well defined in the act, can certainly be defined and described.
3. Communication at all stages of the process is vital. Being able to act swiftly and early to calmly identify for an employee what improvements may be required in performance. Being able to explain what is happening or about to happen in a way that is consistent with policy and the principles of natural justice. Being able to describe to a third party why decisions were made and actions taken.
The Fair Work system does not necessarily encourage legal representation but it does place value upon an unbiased and impartial perspective in employment situations.