Say what you mean and mean what you say!

“Fairness is not an attitude, it is a professional skill” – Brit Hume, American television journalist and political commentator.

Thus, spoke a frustrated journalist, and he should know.  Hume was a prominent in the USA and during his career in the press and broadcasting media he regularly covered issues, which one might consider had elements of unfairness which had hit the world headlines. The Lewinsky affair for one, and the Gulf war for another. No matter what you thought of those events, laughable and crass or the most serious of matters, we would all agree that the task for a journalist is to maintain a level of impartiality, and to present the truth no matter what. Furthermore, Hume’s point is correct – to attain fairness is something you achieve through effort and intervention, not just by thinking about it! Sadly, it is “unfair” that reaches the headlines and not “fair”.

Fresh HR Insights has a wealth of experience in fair and unfair matters in the workplace, and it is here that professional skill and behaviour is of paramount importance. Employees who have clarity from their employers in terms of channels for disciplinary and grievance matters feel respected and treated with courtesy even whilst going through the stress and messiness of a disciplinary invoked against them. This is even more so if those disciplinary proceedings have written provision giving space and time for their voice, their version of events and the right of defence and as in all policies, it is crucial that employers say what they mean and mean what they say.

Australian law does not specify what employers have to include in their disciplinary processes and the Fair Work Act of 2009 leaves it up to workplaces to develop and implement their own policies and practices. It is FreshHRInsight’s view that employers should ensure that a policy be written and circulated to all staff in any workplace and that it contain the right of an employee to have their say, at least, at the outset of the process if not at every stage.

Employers should stick to their own written policies however cheeky, disrespectful, or plain incompetent an employee has been.  Employers should not be tempted to jump the gun and race through the procedure at double quick speed, and they should not prejudge any situation before hearing all sides of the story, especially if the policy says you should not. Not following your own policy not only serves to invite appeals against any decision, it can invite potential lawsuits and tribunals and any tribunal will study your policy to ensure it has been adhered to by both employer and employee.

Fresh HR Insights has the knowledge and skill to help employers develop fair processes for both employer and employee which will serve both in the interests of workplace justice. It is important that employers say what they mean and mean what they say, and if they say to employee their voice will be heard, then that should be so.

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SOME FACTS

Unfair dismissal – Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. The Fair Work Commission (the Commission) decides on cases of unfair dismissal.

A person has been dismissed from their employment when:

• their employment has been terminated at the initiative of the employer, or
• they have resigned their employment but the resignation was forced by something the employer did.

Applications to the Fair Work Commission can fall under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of the dismissal taking effect.

Possible Remedies The remedies available to the Fair Work Commission when dealing with applications are determined by the Fair Work Act 2009. A remedy for unfair dismissal may include:

• reinstatement (getting the job back)
• compensation (must not be more than 26 weeks’ pay)
• non financial remedies such as a written statement of service.

Who is protected from unfair dismissal?

An employee of a national system employer (called a national system employee) who has been dismissed is protected from unfair dismissal and eligible to make an application for unfair dismissal remedy if:

• they have completed the minimum period of employment AND
• they earn less than the high income threshold (which is currently $142,0006 per year), or
• a modern award covers their employment, or
• an enterprise agreement applies to their employment.

It is not an unfair dismissal if the dismissal was:

• a genuine redundancy, or
• consistent with the Small Business Fair Dismissal Code (in the case of employees of small business).