Dismissal ruling isn't fair
"Pity the bosses" was the first reaction to the decision of Fair Work Australia a few weeks ago in the case of Paul L. Quinlivan v Norske Skog Paper Mills (Australia) Ltd.
On September 2 last year, Paul Quinlivan was cleaning a tank in the paper recycling warehouse at the Norske Skog paper mill in Albury.
On a number of occasions he was told to wear safety glasses. He refused. Quinlivan was later sacked and he claimed he'd been unfairly dismissed.
Although FWA (the body the Rudd government set up to replace the Australian Industrial Relations Commission) found the company had a valid reason for the sacking, it nonetheless concluded the dismissal was "harsh" and therefore it qualified as an unfair dismissal. Norske was ordered to reinstate Quinlivan and pay him lost wages.
According to FWA, some of the reasons why the sacking was harsh included the employee being 44 years of age and having worked at the mill for nearly 20 years; he did not finish secondary school and had been unable to find work in another full-time job since his dismissal; he was married with two daughters aged nine and 11; he has a mortgage of about $70,000; and his wife suffered depression.
Not surprisingly, the decision dismayed employers. They are in a no-win situation.
At the same time as they're subjected to ever tighter occupational health and safety standards, employers have been told they can't use the ultimate sanction - dismissal - when employees deliberately breach safety regulations.
The acknowledgment from FWA that "it was entirely proper for the respondent [Norske] to treat seriously the misconduct constituted by repeated failure to wear safety glasses" is little consolation to companies facing such situations. A precedent has been set.
FWA said: "Other employees of this respondent should not interpret this decision as in any way endorsing a disdainful or careless approach to safety or the respondent's safety policies.
"If the applicant had substantially lesser services, had not been a middle-aged man with very poor employment prospects for whom the dismissal has such serious personal and economic consequences ... I would not have concluded that the dismissal was harsh."
This sounds suspiciously like one rule for middle-aged men with low educations qualifications and another rule for everyone else.
Employees who have behaved in exactly the same way in the workplace will be subject to different rules for unfair dismissal according to factors such as their gender, age and whether they have a mortgage.
The problem for employers is FWA has signalled that, when deciding unfair dismissal cases, it will take into account factors not connected to either the employee's job performance or the manner of their dismissal.
In Quinlivan, the dismissal was deemed harsh because of factors over which the company had no control.
What's worse is that FWA concluded a sacking could be harsh because of something that happened after the sacking and because of something that had nothing to do with the company, namely that Quinlivan had been unable to find full-time work.
A fundamental principle of the rule of law is that individuals affected by legislation should be able to form some sort of conclusion about how the legislation is applied. But it seems employers no longer have that luxury.
There's no way employers facing unfair dismissal claims will be able to anticipate which of an employee's personal issues FWA will take into account when deciding whether a dismissal was harsh.
If an employer did try to find out about an employee's personal life, the employer would risk any number of anti-discrimination and privacy law suits.
To be fair, the principles FWA applied in Quinlivan are not new. The Howard government's Work Choices legislation had similar provisions.
The difference is that, under the coalition, small business was not subjected to thoese sorts of unfair dismissal rules.
Under the Rudd government, small business has been drawn into the labyrinth of such rules.
The risk is that employers will decide it is all just too hard. Many small businesses may conclude it would be easier to employ a contractor or, easier still, not to employee anyone.
That would be a pity for bosses and workers.