The Government has tried to improve the process of dealing with unfair dismissal claims to discourage employees from making claims that have no merit.

But it remains to be seen whether their changes will stop this from happening…

Here are the changes that have been made:

1. The 21 day time limit has been reduced to 14 days

Although claimants have 14 days to lodge a claim after they have been dismissal, Fair Work Australia will still allow late claims if the claim has merit, the claimant has a good excuse for the delay and you have not replaced the dismissed employee. However, according to a recent FWA ruling it is harder to get an extension under the Fair Work Act than under Work Choices (Shields v Warringarri Aboriginal Corporation).

2. All go for telephone conferences

During the first 3 months of the Fair Work Act, 89% of conciliations were by telephone – and they appear to be working because over 80% of claims settled at conciliation. However, telephone conferences generally take longer than face-to-face conferences and you need to be more prepared.

3. It’s harder to be legally represented

It is harder to be represented by a lawyer or a paid agent at an unfair dismissal hearing under the Fair Work Act than it was under WorkChoices. You can only be represented if it would be unfair not to be represented, either because you are unable to represent yourself effectively or because the claimant is represented by someone with more experience.

Example: If you are a small business employer with no HR expertise matched up against an experienced union official you will get permission to be legally represented.

Commissioner Harrison recently denied permission for a larger employer to be legally represented in a case where a non-legal union official was representing the claimant. The Commissioner considered that the matter was insufficiently complex and the employer did not need to engage in forensic cross-examination (Rodgers v Hunter Valley Earthmoving Company Pty Ltd).

For more details on how you can make sure your business is prepared for all the Fair Work Act changes, take a 14 day FREE trial of the Employment Law Practical Handbook. Click here to find out more!

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Tags: claimants, Commissioner Harrison, employees, Employment Law Practical Handbook, fair work act, fair work australia, FWA, government, merit, unfair dismissal claims, union official, work choices