Rethinking the Fair Work Protection against Discriminatory Dismissal
| DOI | 10.22145/flr.41.1.7 |
| Author | Joellen Riley |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Subject Matter | Article |
RETHINKING THE FAIR WORK PROTECTION AGAINST
DISCRIMINATORY DISMISSAL
Joellen Riley
1
ABSTRACT
People who lose their jobs as a consequence of discriminatory treatment at work face
an array of options for re dress. They might bring proceedings for unfair dismissal
before a statutory tribunal (the Fair Work Commission), or they may pursue a claim in
the Federal Court of Australia. This article contemplates the possibility that the system
for dealing with discr iminatory dismissal could be rationalized so that aggrieved
employees might have a single, accessible pathway through an administrative process
to deal with such c omplaints. This would involve rethinking whether discrimination
complaints ought to be treated as a matter of vindicating legal rights, or as a matter of
arbitrating competing interests. Abandoning the language of rights may facilitate a
pathway around the B oilermakers' doctrine (which mandates that only Chap ter III
courts can determine legal rights), and so enable the establishment of a more accessible
and effective avenue for dealing with discrimination at work.
INTRODUCTION
An employee who has been dismissed from her job for discriminatory reasons — let's
say it is because, as the mother of an infant, she doesn't attend enough of the firm's
social functions held out-of-hours — would have two avenues for complaint under the
Fair Work Act 2009 (Cth) ('Fair Work Act').
2
She might make an application under Pt 3 –
2, 'Unfair Dismissal', alleging tha t she has been dismissed without a valid reason in
circumstances that are 'harsh, unjust or unreasonable'.
3
Or s he might pursue a
_____________________________________________________________________________________
1
Dean and Professor of Labour La w, Sydney Law School. I would like to thank my
colleague, Dr Be linda Smith, for detailed comments on the manuscript for this article, and
for the benefit of many years of discussions with her on matters of equality and
discrimination law. I would also like to thank Therese MacDermott, my collaborator on a
number of projects on dispute resolution, for her advice and comments. They are both
innocent of any errors remaining in this article, and the views expressed are my own.
2
She might also make a complaint under a state or federal discrimination statute, but those
options are not considered in this article.
3
Fair Work Act s 385. For commentary on the unfair dismissal laws see Anna Chapman, 'The
Decline and Restoration of Unfair Dismissal Rights' in Anthony Forsyth an d Andrew
182 Federal Law Review Volume 41
____________________________________________________________________________________
complaint under Pt 3-1, 'General Protections', on the basis t hat her dismissal constitutes
'adverse action' taken against her 'because of' her family or carer's resp onsibilities.
4
Both options are available to an employee who falls within the scope of the unfair
dismissal protections. So employees whose work is covered by a modern award or
enterprise agreement,
5
or who earn below the high income threshold,
6
and who have
served the minimum employment period,
7
can choose between these two avenues, if
they wish to challenge their dismissal.
Depending on which path such an employee chooses, the process for dealing with
the matter will be very different.
8
If she proceeds as an unfair dismissal applicant, she
must lodge an application with the Fair Work Commission ('FWC')
9
within 21 days
after the dismissal took effect,
10
and the FWC will arrange a compulsory private
conference between the employee and the employer to seek to resolve the dispute.
11
It
is most likely that this conference will be held by telephone, and conducted by a
mediator employed by the FWC.
12
If the matter is not resolved at this stage, a member
of the FWC is empowered to arbitrate the matter, with a view to ensuring that ' a "fair
go all round" is accorded to both the employer and employee concerned '.
13
The whole
process can be over in a matter of weeks, at very little cost to the applicant ( especially if
she has not engaged any legal representation).
If she ch ooses instead to pursue a 'general protections' claim, and the matter is not
resolved in the private conference held by a FWC member,
14
she must commence
proceedings in the federal court system to take her complaint any further. The matter
is unlikely to be heard within nine months, and is likely to cost each party many tens of
thousands of dollars in legal fees. The court will decide her complaint as a matter of
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Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (Federation
Press, 2009) 207-28.
4
Fair Work Act s 351. For a note on early adverse action cases, see Joellen Riley, 'Adverse
Actions Claims under the Fair Work Act 2009 (Cth): Some Lessons from the Early Cases'
(2011) 25(3) Commercial Law Quarterly 12.
5
Fair Work Act ss 382(b)(i)–(ii).
6
Fair Work Act s 382(b)(iii) and Fair Work Regulations (Cth) reg 3.05. At the time of writing the
high income threshold was $123,300 (from 1 July 2012). This amount is indexed annually.
7
Fair Work Act s 383. This period is six months, or 12 months if the employer is a 'small
business employer', defined in s 23 as one who employs fewer than 15 employees.
8
For a fuller account of the procedures for pursuing ea ch type of claim, see Therese
MacDermott and Joellen Riley, 'ADR and Industrial Tribunals: Innovations and Challenges
in Resolving Individual Workplace Grievances' (2012) 38(2) Monash University Law Review
82.
9
The FWC was previously called Fair Work Australia.
10
The FWC can grant an extension of time in 'exceptional circumstances': see Fair Work Act s
366(2).
11
Fair Work Act ss 365, 368(1).
12
See Jenny Acton, 'Fair Work Australia: An Accessible, Independent Umpire for
Employment Matters' (2011) 53 Journal of Industrial Relations 578–95. See also TNS Social
Research, ‘Fair Work Australia Unfair Dismissal Results’ (Survey for Fair Work Australia,
November 2010) for data on the operation of the telephone conferencing system.
13
Fair Work Act s 381(2).
14
See Fair Work Act s 368 which requires the FWC to conduct a conference to deal with any
general protections dispute involving dismissal.
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