Unfair dismissal

 

  • Of the 17,964 unfair dismissal claims lodged, 90% were “settled” by the employer paying the former employee “go away money”.
  • Of the 265 application that went to arbitration, the FWC decided:
  • 130 in favour of the employer.
  • 135 in favour of the employee.
  • 18 (only) granted reinstatement and lost wages. The rest were awarded monetary amounts.

 

 

Unfair Dismissal Application 1997 to 2016 (including General Protections)

 

Simple remedy

 

Ring me for advice BEFORE dismissing an employee.

 

General Protections

 

This is an interesting part of the Fair Work Act 2009, which places the onus on the employer to provie that they did nothing wrong. This is called “reverse onus of proof”. “Employee representatives are finding this a popular revenue stream from unsuspecting employers.

 

Bullying, is defined as

 

“An individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety”.

 

Remember the following statistics only apply to “General Protections” and “Stop Bullying Orders”

Stop-Bullying applications outcomes:

Not much in this for the “No-win, No-fee” brigade. So, numbers, whilst rising steadily to 705 applications:

 

  • 462 applications were withdrawn,
  • 191 were resolved “during the course of proceeding”, and
  • 52 were finalised by decision.

 

Appeals

 

If you are unhappy with a decision of the FWC, good luck with appealing the decision, as is almost 4 out of 5 cases are refused permission to appeal.

 

Therefore, if you fight a case in the FWC, go in with all guns blazing at the conciliation stage, and increase this pressure at the arbitration stage.

 

Permission to appeal statistics

Year Total Not granted Granted
2015-16 137 107 26
2014-15 70 52 18

 

Victorian Equal Opportunity and Human Rights Commission

 

There were 1,139 “employment related” claims for 2015/2016.

Claims 1999 to 2015

 

Employees alleged that employers broke the law because they discriminated against the employee (or potential employee) on account of their:

 

Attribute 2013/14 2014/15 2015/16
Age 77 90 83
Authorising and assisting      
Breastfeeding 6 1 5
Carer status 85 99 62
Disability 340 355 258
Discriminatory info. request      
Employment activity 210 188 114
Gender identity 1 9 1
Industrial activity 27 20 17
Lawful sexual activity 14 3 1
Marital status 29 21 10
Parental status 83 93 66
Personal association 19 23 9
Physical features 90 100 62
Political belief or activity 9 2 3
Pregnancy 43 35 33
Race 175 174 100
Racial vilification      
Religious belief or activity 21 39 22
Religious vilification      
Sex 110 184 130
Sexual harassment 185 170 138
Sexual orientation 16 61 25
Victimisation      
Total 1540 1667 1139

 

WorkSafe Victoria

 

  • WorkSafe has again been working hard to keep us all safe through enforcement, stating:

 

“WorkSafe’s role in enforcing OHS and return to work legislation is important in driving safety improvements across the state”.

 

  • In 2015/16, WorkSafe completed 110 prosecutions.
  • Imposed fines of $5,241,000.
  • Visited 46,259 workplaces.
  • Entered into four enforceable undertakings.

 

Compliance measures 2013/14 2014/15 2015/16
Annual workplace visits 41,566 40,711 46,259
Prosecution success rate 88% 93% 94%
Investigations proceeding to prosecution charges within 12 months 75% 83% 91%
Completed investigations proceeding to legal review outcome 67% 66% 71%
Prosecutions commenced 107 114 119

 

  • Unfortunately, 31 workers lost their lives (11 in agriculture and eight in construction) – up from 20 in the previous year.

 

Claims

 

For some reason the WorkSafe Annual report does not break-down the total claims by injury/illness.

 

There were 26,286 claims last year.

 

Focus

 

WorkSafe is taking an active role in addressing:

 

  • Workplace violence, especially the increasing risks faced by front line workers across the state. It is working in partnership across Government, with healthcare providers and with Victorian workplaces. The focus is to address the underlying issues, while educating employers and workers on how to recognise the risks in order to prevent injury and harm.
  • Promotion of positive mental health, reduce workplace risks through targeted prevention activities and provide support and assistance for those affected by stress disorders. Highlights include:

 

  • An updated stress website and guidance material.
  • Increased visits in the education sector.
  • The Mental Wellbeing Collaboration Resource Centre is an innovative partnership with Superfriend and VicHealth that raises awareness of the role that leaders play in promoting positive mental health in the workplace.
  • The bullying prevention alliance is a partnership with the Bully Zero Australia Foundation and Brodie’s Law Foundation that delivered a series of engaging and emotive education and information sessions to younger workers.

 

  • Asbestos:

 

  • The dangers associated with asbestos are well established and will remain a high priority. We continue to work with others to minimise the risk of exposure to asbestos in the community. This year, WorkSafe has worked on increasing awareness of safe work practices when removing or disturbing materials containing asbestos and on increasing awareness of in situ asbestos contained in older buildings.

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.