Did you know…Fair Work reported an increase of 60% in unfair dismissal claims during the 2020 pandemic? How can your business avoid facing a claim?

Did you know…Fair Work reported an increase of 60% in unfair dismissal claims during the 2020 pandemic? How can your business avoid facing a claim?

As an employer, you have a responsibility to run your business, manage your team and make decisions regarding employee working arrangements that are viable for your business and comply with legislation while navigating the economic challenges… not an easy task at any time, particularly during a post-pandemic business recovery period.

Did you know… the Fair Work Commission (FWC) reported an increase of 60% in unfair dismissal claims during the 2020 pandemic compared to the previous year?

In the ongoing climate of post-pandemic uncertainty, the Fair Work Commission (FWC) revealed that unfair dismissal claims have surged up 60% and stand-down disputes have increased by 500% in 2020, compared to the same time the previous year. You may be wondering what you as the employer can do to avoid a claim in relation to unfair dismissal or stand-down.

As the majority of the recent cases filed in relation to JobKeeper have already been withdrawn due to clarification outlining FWC jurisdiction in JobKeeper matters, the rise in unfair dismissal cases is not related to COVID19.

So then, why the increase in unfair dismissal claims and how can your business avoid facing a claim?

The combination of three key reasons appear to have spiked the volume of claims to the FWC.

  1. Higher unemployment: When there are a higher number of people losing their jobs, it creates uncertainty for both employees and employers. The increase in claims is costly to business, impacts productivity and deter permanent employment and jobs growth. 
  2. Nervous employees: If an employee loses their job (regardless of whether they were dismissed for performance / behaviour issues or made redundant), some of them will not question why and just try and find another job. However, in the current climate there is no job to move on to and they may look to their former employer for answers.
  3. Uncertain employers: Alternatively, the manner in which some employers approach dismissal, redundancy or stand-down may be mis-managed, mis-understood or unclear, resulting in claims to the Fair Work Ombudsman (FWO).

Recently, Akyra assisted a client to formulate a strategic response to rethinking workforce requirements made more complex because the client was in receipt of the JobKeeper program.

We worked with the client to identify the issues and determine an outcome that:

  • identified the appropriate workforce for the business future objectives;
  • protected the business from an unfair dismissal claim verdict;
  • provided the employees with their entitlements; and
  • manage compliance with JobKeeper requirements and Fair Work Act legislation.

Employees in the relevant roles were made redundant; two lodged a Fair Work Claim. One later withdrew their claim before the mediation and the second was advised at mediation they had no claim because the client had followed the process which was backed by comprehensive people management an legal advice.

Akyra’s HR advice and recommendations ensured a client was compliant when faced with an unforeseen Fair Work claim as they navigated the complexities of the JobKeeper program and internal restructuring.

So, what can you do to avoid an unfair dismissal claim?

Whether there is an unforeseen pandemic or in more normal business operational times, all business owners/managers should ensure HR policies and associated legislation is complied with. 

Below are the key considerations and practices to help you as a business owner or manager avoid a claim to the FWO.

  1. Record keeping: If you have kept adequate records and undertaken all necessary steps before dismissing an employee, the dismissal will be treated by the FWO in exactly the same way as before COVID19.
  2. Termination procedures: The principles of procedural fairness in respect to performance-based or behavioural-based dismissals still apply. COVID19 has not changed any of that in any way. 
  3. Redundancy or stand-downs:  You need to carefully consider your decision as to whether stand down or redundancy is the most appropriate action. There are major differences between these two actions.  It is very important the correct option is actioned for your business as each option has different legal obligations and ramifications. It is timely to remember that, if it is not a true redundancy, then you may be liable for unfair dismissal. Akyra can guide you in deciding which option applies to your situation.

It can be a daunting prospect for businesses and managers to not only know where to start, but how to manage their workforce.  

Akyra can provide you with a review of your workforce to assist with compliance, entitlement clarifications, policies and guidelines... plus, a multitude of additional HR tailored services and support to ensure you are compliant with the Fair Work Act. 

Every industry and business will have unique requirements and for further guidance or advice on human resource management. CONTACT US NOW to book a time to discuss any areas of HR concern; after which we will provide a way forward where it might be needed.

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