The PIAA is backing the Australian Chamber of Commerce and Industry (ACCI) in its call to significantly raise the unfair dismissal claim fee for employees to $1000, from $71.60.
It follows the Fair Work Commission (FWC) decision to raise the fee from $70 to $71.60, an increase which the PIAA contends is measly.
There are currently around 50 unfair dismissal claims brought by former employees of print businesses each year, with around 80 per cent of these settled before arbitration. Most cases that go to arbitration come down in favour of the employer rather than the employee.
The peak print association says the proposed $1000 fee will ensure the employees have skin in the game when claiming they were fired unfairly.
Paul Mitchell, national workplace relations manager, PIAA, says, “It would give legitimacy and credibility to their claim, because they have invested money in their claim.
“In this world, if you do have a genuine claim, $1000 is not hard to find.
“If it is proven, and a settlement amount is agreed to, the money is refundable.”
The PIAA says this will balance out the costs to employees, which often have to spend days outside of work, not making money, to fight unfair dismissal claims.
Mitchell says, “The moment an unfair dismissal application is lodged you can immediately write off two days of work as a minimum defending an unfair dismissal claim until conciliation.
“Not only is this two days where a Director or senior employee is on company time getting paid for nothing, they are also not making any money either. It is a double whammy.”
When quizzed on the difficulty for workers living paycheck to paycheck to find $1000 following the loss of their job, Mitchell offered a potential exemption which could be made, “The FWC could consider a claim without a necessitating a response from the employer, to access the merits of it, within certain criteria.
“They could also consider genuine financial hardship, and if the claim has merit, continue on the conciliation process with no fee needed from the employee.
“You could have a strike out system where if there was no evidence attached, there did appear to be fair and due process applied, like four or five warning letters explaining similar poor performance, the commission should have the discretion to say the evidence is skewed one way.”
While increases in fees have been proposed in the past, there have been concerns that it would be a blunt instrument, which would equally deter reasonable and unreasonable claims.
Legal Aid NSW says it does not support any increase in lodgement fees and, in particular, any increase that is not means tested, noting, “Workers making unfair dismissal claims are often in a precarious financial position following the termination of their employment. This situation is often exacerbated where employers have not paid statutory and award entitlements on termination.”
In 2015, the Productivity Commission recommended a similar process to that PIAA and Mitchell proposes, in that, “The Australian Government should amend the Fair Work Act 2009 to give the Fair Work Commission clearer powers, in limited circumstances, to deal with unfair dismissal applications before conducting a conference or hearing, and based on forms provided by applicants and respondents.
“The Australian Government should amend Division 3 of Part 3-2 of the Fair Work Act 2009 to introduce a two-stage test for considering whether a person has been unfairly dismissed. The first stage should determine whether there was a valid reason for the dismissal. If yes, the second stage test should determine whether any of the factors currently listed in s. 387 (b) – (h) result in the dismissal being deemed harsh unjust or unreasonable.
“The Australian Government should change the penalty regime for unfair dismissal cases so that employees can only receive compensation when they have been dismissed without reasonable evidence of persistent significant underperformance or serious misconduct, and so that procedural errors by an employer should not result in reinstatement or compensation for a former employee, but can, at the discretion of the Fair Work Commission, lead to either counselling and education of the employer, or penalties.
“In repeated or serious cases, the Fair Work Commission could seek penalties by making an application to the Federal Court or Federal Circuit Court.”
The PIAA-organised National Print Awards are taking place tomorrow night, with the final tickets still available for purchase online at https://www.eventbrite.com.au/e/national-print-awards-2018-tickets-46790222816
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Mitchell and Macaulay are hard nosed advocates for business. They make no apologies for standing up for employers. Good on them! Keep up the good work guys!