Unfair dismissal: why breaking up is hard to do

So many times, a relationship turns nasty and one person takes the other to court – and the cleaners.

It is called unfair dismissal or, if you are among the highest paid, an adverse action claim.

You might have at first thought I was a talking about a marriage and given that about one-third of such unions end in divorce, that is understandable.

However, sackings are just as emotional and emotionally bruising as the end of a marriage and are often just as badly handled.

Changes to the Fair Work Act changing the time limits on making claims were introduced to the Lower House of Parliament on Tuesday.

The intention is to give employers some certainty about whether former employees will launch claims and also to stop matters dragging on and on.

Those making unfair dismissal claims now have 21 days to take action – an extra week. The time limit for adverse action claims (used by those paid too much to qualify for unfair dismissal and are uncapped in terms of payouts) has been reduced from 60 days to 21 days.

The managing principal of employment law firm People + Culture Strategies, Joydeep Hor, is fond of using the marriage metaphor when describing how to separate employees from their jobs.

He says up to 25 per cent of claims against employers would never have come to pass if they had been handled better from the start.

“In my experience, there is a lot of emotional ventilation,” he says of the process.

Most sackings are the result of a breakdown in the relationship between employees and managers and both sides are irrevocably convinced that they are in the right.

They almost never change their opinions and, because dismissal gives the manager the ultimate say, the employee often feels that their opinion was not heard or given enough credit.

“It is a fait accompli,” says Hor.

The fact that the terms of separation originally offered by the employer are often agreed to by the employee at arbitration shows that, often, they just really want their “day in court”, he says.

Hor says there would be a very high percentage of claims that are brought in vengeance and vindictiveness.

“They are processing their anger; more than half would fall into that category.

“But I think, sometimes, that is something created by silliness about what was said to someone or how they were treated.”

What works well is to get an independent arbitrator to work out a solution that gives both sides a “win”, without getting into details about who did what to whom. It is the same as working out a divorce settlement, which does not go into the causes of the marriage breakdown but looks to a fair distribution of the assets.

The damage done by drawn-out dismissals is that it takes employer time and resources and there is the scuttlebutt that goes around about whether the sacking was warranted or not.

“These are the hidden costs,” says Hor.

For the employee, the sooner the matter is settled and they can move on, the better.

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