Fair Work Commission: Unfair dismissal cases rise by 40% due to pandemic

A legal expert has warned the number of unfair dismissal cases being made to the Fair Work Commission will continue to rise as a result of the pandemic. The FWC’s annual report revealed a 40% jump in the number of applications it dealt with during the height of the pandemic between March and June last year.

A similar pattern to the fallout from the GFC, panic measures by some employers have caused a rise in the number of employees who believe they were unfairly let go. Overall, the FWC saw an 8% rise in the total number of applications, but the majority comprised unfair dismissal and general protection suits with 16,558 and 5,873 made respectively.

Speaking to HRD, Nick Northcott, chief strategy officer at Australian legal tech platform Immediation, said the pressure and speed of the economic changes over the past year has led to more fractured employer/employee relationships.

“Some employers were operating in crisis mode, and the first thought was do I open my doors and if I don’t, how am I going to cope with that loss of revenue and remain solvent?” he said.

“Often in those circumstances the employment piece is not managed as effectively as it could be, so that increased stress and increased pressure creates a fight or flight response from the person managing the business.”

Read more: Unfair dismissal applicant awarded extra $4K in second suit

The introduction and subsequent end of JobKeeper also added complexities to ensuring businesses were paying their employees correctly. On top of that, there has been the stress of operating throughout the snap lockdowns like those recently imposed in Brisbane and Perth which left many hospitality businesses struggling.

Employers also need to stay ahead of the change to casual employment introduced under the IR bill last month. The legislation has created a legal definition of a casual employee for the first time, in response to the Fair Work rulings of WorkPac Vs Rossato and WorkPac vs Skene.

Looking ahead, Northcott said HRs who are unsure about their organisation’s compliance should start by going back to basics. Assessing each employee’s role, job expectations, and status is vital, as well as any award and compliance mechanisms that may be in place. Aside from the compliance aspect, employers should also be thinking about company culture and how they’re communicating their values to employees.

“My advice to HRDs is to go back and look at your business because it's probably different to what it was when you were there two years ago, a year, or even six months ago,” he said.
“Create a structured process for how you assess against all the different parts of employee lifecycle from recruiting, onboarding to succession management.”

Read more: Can casual employees make a claim for unfair dismissal?

As well as the rise in unfair dismissal cases, there have also been a number of high-profile workplace fallouts in the last year. Execs appear to be more emboldened about taking their disputes public, sharing stories of discrimination and poorly handled attempts to oust them from their organisations.

Northcott believes employers will continue to see a rise in disputes, especially unfair dismissal and adverse action claims. The increased awareness around what constitutes harassment and discrimination and the bravery of figures such as a Brittany Higgins has sparked a louder conversation around these types of workplace complaints.

“Trust plays a key role in any reporting mechanism within HR,” he said. “You’ve got to have reliability, credibility, and some form of relationship with people, so it’s really important for HR managers and functions to be visible in taking action when issues arise.”