Workplace & Unfair Dismissal News

Why Females in the Workplace Are Being Unappreciated and Poorly Paid.

It is widely acknowledged that females earn less money than males.

Many politicians, journalists and commentators, claim that this is due to females tending to be in lower-paid careers. Of course, the pay equality complaint is that females are paid less than males for the same work, but the discussion should also include the fact that females do tend to be in lower paid careers and why. The truth is that “women’s” careers are paid less because it’s females who tend to do the work. Don’t believe me? Just look at the history.
Femininizing Fields
You might hear some people say that if females want to be paid more, they should work in higher-paying fields. This might seem like good advice, but the fact is that the more females who follow it, the less true it will become. This is because jobs are paid less as they gain popularity with females.

Look at recreation: As females began to outnumber men at gyms’, boot camps, as personal trainers and the like, jobs in that field saw a pay drop of 57% from the 1950s until today, even after adjusting for inflation. The same can be seen in more artistic careers as designers, artist, picture framers have seen their wages cut by 34% as the industry as seen more females employed. Biology, and Ecology used to be a highly-respected fields in science, but as more and more females became biologists and are employed, the wages fell by 18% and it’s now seen as a “soft” science, rather than the harder (more masculine) fields of physics and chemistry. Think of other fields, like psychology, teaching, disability care, etc. You can probably come up with dozens of careers and occupations that fit this pattern.

So, jobs are paid less when they become “feminized.” But the opposite is true when males start to take over a previously female-dominated field. A good example is computer programming. Most programmers and systems analysts were once females, and, at that time, the position was seen as menial. As males poured into the field, it began being paid substantially more. Not only that, it’s gained a lot of prestige; no one would say computer programmers have tedious, or menial jobs anymore.

Think that it just shows how priorities have changed over time? Consider doctors. While female doctors are paid less than their male counterparts in any specialty, we also see a massive pay gap between different kinds of specialists. Pediatricians, who are overwhelmingly women, are paid significantly less than most other specialties. There’s even a huge difference between cardiologists and pediatric cardiologists in terms of pay. We can also make comparisons between countries. In the United States, medicine has historically been a very male field and it’s highly paid. In Russia, medicine is a field dominated by women, and it is paid extremely poorly in relation to other professional field.

There is a argument and the evidence indicates that pay is largely determined by the gender build-up of the industry. Male-dominated fields pay, on average, 21% more than more “feminine” fields. It’s not that females choose lower-paying jobs; it’s that females work is paid less, no matter what that work entails.

Minimal Pay
So, what about males in female-dominated careers? Answer: they’re still paid more. Male nurses earn more than female RNs in every specialty. About three quarters of public school teachers are women, which might explain why the field is so poorly paid. Even so, male teachers earn 10%+ more than female teachers. Even the titles change for very similar jobs. Janitors, who are mostly males, earn more than housecleaners, who are generally females.

And then there’s the minimum wage. Nearly two-thirds of minimum wage earners are females. When the minimum wage was introduced in Australia, the idea was that a man working 40 hours each week should be able to support himself and his family at a decent level of living. Today, working full-time on the minimum wage can do no such thing. Back then, the intended beneficiaries were men (and their families). Today, the minimum wage goes mostly to females, and now the minimum wage no longer fulfills its intended purpose. Coincidence? I think not.

It’s Time to Start Appreciating Females and the Work They Do
The simple fact appears to be that typically “feminine” careers are paid less because it’s women who do the work. Regardless of what type of work it is or what skills are necessary, the more females are in a occupation / profession, the less it gets paid. On top of that, males in all fields, including “feminine” industries, are paid more than their female counterparts. This bias in favor of males trickles down to our very minimum wage, which has seen drastically reduced buying power as females began receiving most of those minimum payments. All of this indicates that it’s not women’s work that is undervalued; females themselves are undervalued.

Working women deserve equal recognition, respect, and pay for the work they do. It’s long overdue that females be valued and appreciated, for their contributions to society and otherwise. females still aren’t treated – or paid – equally, and it’s about time they were. If the job is important enough to exist, it’s important enough to pay it fairly, whether male or female do it. It’s time to start valuing females and the work they do.

This article is meant to provoke thought,

I’m not pro female or anti male, i’m pro everybody in the workplaces of Australia. There has to be more discussion in the current difficult economic times, particularly as we start to reemploy people as we come out of the recession. There is no easy answer to the conversation outlined above, history shows us, in recessions, pandemics, that’s it’s the less advantaged, the working class poor, part time workers that are impacted the most. It’s well advertised that partners in accounting and law firms are taking pay cuts on their $400,000 to $800,000 jobs, but there is no doubt they will survive, maybe their lifestyle will have to be adjusted. Workers in lower paid positions, (in many cases females) who are the household dominate income provider, will lose the car, house etc, this will then impact on the physiology of the next generation of children as it did in the great depression.

Ramifications Of Considering If The Chief Health Officer Should Be Sacked

There has been incessant criticism and death threats targeted at the Queensland Chief Health Officer, Dr Jeannette Young, surrounding the rigid Queensland border closures. Calls for Dr Young to resign are resounding throughout the public arena. But who calls the shots? Can the Australian people force Dr Young to resign? Or is it best handled by the Queensland government? How does this apply to other workplaces today, should mob rule, or can public officers and managers at companies ignore the will of the public and the workforce. If Dr Young is sacked,. can she lodge an unfair dismissal claim?

How can we reconcile a lynch mob mentality with the need for procedural fairness?
Fundamentally, Australia is a representative democracy, which means that parliamentarians are representative of, and responsible to, the Australian people. It is from the people directly that governments, both State and Commonwealth, obtain their power. However, Dr Young is not a parliamentarian and nor is she elected. Dr Young is appointed by the Queensland public health service – which makes her just that, a public servant. Hence, it is argued that Dr Young should not be wielding such expansive power when she is not an elected representative of the people. She has not been chosen by the Queensland population to make her decisions, which are often controversial.

It seems that everyone has their two cents’ worth to add on how border closures and quarantine should be managed. But that’s just it – should popular conjecture influence the management of the COVID-19 crisis? Or should it be the carefully formulated by qualified health experts who have dedicated their professional lives to the field?

Despite only becoming recognized in households this year amidst the COVID-19 pandemic, Dr Young has filled her eminent position as Chief Health Officer for 15 years. The response to the COVID-19 crisis this year has been more widely promulgated by the media, as the COVID-19 pandemic is affecting all Australians each and every day. However, what is less acknowledged by Dr Young’s critics is her success in the role in combatting crises such as the Tropical Cyclones Larry and Yasi and the 2010-2011 floods. It is fair to say that Dr Young earned her position as Chief Health Officer, and until this year, no-one cast aspersions over her credibility or expertise.

No-one expected the outbreak of coronavirus. It could not be anticipated. There is no precedent on how to tackle this pandemic that has gripped the entire globe. As ordinary citizens, we hope that our governments are doing the very best in their power to fight this crisis for us. We place our faith in our elected representatives and appointed public service officials, who have nevertheless never seen a health crisis like this one, just like us.

In short, there is no perfect solution. Dr Young’s rigid border closures are unprecedented and have devastated many lives – but the closures have also prevented the devastation of many more, as Queensland is on track to eradicate the virus.

In times of crisis, everyone is tested – the government as much as the people and don’t forget the workers of this country. It is not unusual for frightened and frustrated individuals to search out someone to blame for all their grievances, and usually it is those in authority that are in the firing line, just as Dr Young is presently. Criticism will almost always flow from a crisis, which is entirely acceptable given our democratic freedom of speech. But what’s important to remember is that everyone is only human and no-one can see the future or foretell the best course of events.

The most appropriate way to tackle a crisis is largely speculative, many workplaces face the same scenario, although research and evidence can support a method of doing things, there is almost always a competing course of action. One need only compare the conflicting approaches to the coronavirus pandemic adopted by Sweden and Australia. At the beginning of the coronavirus pandemic, Sweden controversially refused to enforce a lockdown. Although there was a large spike in deaths initially, their daily recorded cases are now lower than Australia.

Queensland’s border closures are one approach, amongst a myriad of other courses of action that could have been taken. It certainly may not be the best approach, but how can we know what is?

The primary criticism of Dr Young is that she is dictating the policies and procedures of Queensland’s COVID-19 response, to the detriment of many, despite not being an elected representative of the people. Although this is true, Dr Young was appointed by the Queensland Government. As representatives of the people, we would expect that the Queensland Government would take appropriate action to rectify the situation and force Dr Young to resign if deemed necessary. It would fundamentally be in the best interests of the Queensland Government to act accordingly, or otherwise they may risk not being re-elected, as the power of the Queensland Government stems from the ballot alone.

This lynch mob mentality in calling for Dr Young’s resignation is not new. Many Victorians are echoing the same sentiment with regards to Premier Daniel Andrews. Furthermore, time and time again, we see the conduct of high profile CEOs denigrated by the media and the population, many of whom purport to be knowledgeable about matters they know nothing about. The mob mentality is quick to emerge once an error or inefficiency is identified during the tenure of an individual in power. In 2019, the CEO of Boeing, Dennis Muilenburg, resigned amidst criticism surrounding two plane crashes. Likewise, the CEOs of both McDonalds and Nike, Steve Easterbrook and Mike Parker were terminated from their positions in 2019 as a result of being embroiled in various corporate incidents.

Certainly, in such high profile roles, whether it be CEO or Chief Health Officer, there is no room for error. As Dr Young is in such an eminent position and should be responsible to the Australian people, her resignation may be appropriate. The people can urge her to do so, but it is important to remain civil and reasonable. Criticism is reasonable, but death threats certainly are not.

At the end of the day, this lynch mob mentality that has emerged must be reconciled with procedural fairness that only the Queensland Government can wield.

This applies to many workplaces, in the last few days the CEO of Rio Tinto resigned after public and shareholder pressure over the destroying Aboriginal artifacts. There’s always a balance between rights and needs of the employee, employer and other stakeholders, where that balance lies on the spectrum is always the controversial question that demands answers

Your Employment Rights With the COVID-19 Pandemic

Parts of Australia are current in a state of emergency and a state of disaster simultaneously amidst the global pandemic. With this, our rights and the laws we are governed and live under are changing on an extremely frequent basis. Both the state of emergency and state of disaster declared by our different levels of government has a significant effect on our rights, and it is extremely hard to keep up with the overload of information and constantly changing status of the law. So, with this article, we seek to clarify the standing of your employment rights.

Arguably the most common area of advice that is requested from our associates are surrounding redundancies, and whether they are genuine or whether they have been unfairly dismissed.

The high complexity of our industrial relations system prevents a ‘one size fits all’ answer. So, with regard to a redundancy, the first logical question to ask is whether the business or industry your employer is in has been detrimentally affected by COVID-19. If the workflow or stream of revenue has been substantially reduced due to COVID-19, your employer may have a rational reason to have made you redundant as it was a practical business decision.

However, not all hope is lost. Despite the real possibility of downturn in business, do you feel as if there was an ulterior motive in making you redundant over someone else?

Are you of the belief that you were more qualified or experienced than the employee who was not dismissed? Being or having been pregnant, being or having been on workers’ compensation or even having made honest complaints in the workplace, could be grounds for you to argue that your redundancy was actually not genuine.
At A Whole New Approach, we utilize our vast experience, knowledge and our strong logic and common sense to tackle the very real employment issues of today. There were many issues in the work sector where employees wished to protect themselves by wearing protective gear like masks but were prevented from doing so by their employer and sometimes even unfairly dismissed for it. As aforementioned, there is no straight answer to these employment issues, so make sure to contact us immediately to see if there is anything you can do to protect your employment rights amidst the global pandemic.

Mental Health, Animals in The Workplace

Every recession and tragedy in history has shown that people consequently suffer great detriment and negative impact on their mental health and wellbeing, due to harsh economic circumstances. The possible mental health impacts correlated with the imminent economic recession and the coronavirus pandemic is a prominent topic of discussion amongst health professionals and government. With such alarming forecasted figures of the psychological toll on Australians, as a direct result of COVID-19, we are increasingly concerned for our Australian workforce.

Day in, day out, we hear the stories of employees from all over Australia who suffer from poor mental health as either a result of hostile and unsupportive work environments or extraneous circumstances. Redundancies, unfair dismissals, discrimination sexual harassment in these dark times is on the increase. With the projected statistics pertaining to declining mental health, it is imperative that employers create safe and compassionate work environments for their more vulnerable employees.

An increasingly popular method of treating anxiety is to have service dogs or companion animals as they can help ease the effects of panic attacks, provide a sense of calm and even get your medication for you if need be. Other animals that have scientifically proven to help people reduce their anxiety and stress levels are rabbits, fish, guinea pigs, horses and cats. Considering your work may be the most stressful part of your life and the biggest cause for anxiety, you would want your anxiety animal to accompany you. But how appropriate is it to bring your emotional support animal present with you in your workplace?   

We previously had a client who was terminated from her employment for bringing in her support dog to work. This made us curious as to whether employers would see a rise in employees wanting to bring their support animals to the workplace after COVID-19 and the subsequent economic depression. Would it be fair to discriminate against an employee who simply uses an animal in the stead of medication which could impair cognitive functioning or have other health side effects? Is it our human right to be able to treat our illnesses in the way that we think is best?

Our answer to this is to be rational and reasonable. If you currently or will benefit and rely on a support animal in the future and you wish to bring them into your workplace, we suggest you have a healthy and open conversation with your employer on whether this would be appropriate and whether it could be facilitated. It might be interesting for you to know that one of the biggest American corporations, Amazon, allows their Australian employees to bring their pet animals into work! Unfortunately, it will most likely not be appropriate if you work as a nurse in aged care or a hospital, or in any workplace that requires the highest level of hygiene.

We sincerely hope employers will open their minds to the reality of the serious mental health concerns we will be facing in the near future in light of COVID-19 and the economic downturn. If, however, you feel as if you have been unfairly dismissed for exercising your human right to bring your support animal to work, give us a call immediately and we will do our best to help protect your rights.

Workplace Mental Health

COVID-19, EMPLOYMENT & YOUR MENTAL HEALTH – WHAT CAN YOU DO?

With unemployment on the rise and showing no signs of slowing, what can you do to protect your job, avoid being dismissed and safeguard your mental health?

What is happening to employment during the COVID-19 pandemic?

The coronavirus pandemic is taking many more victims than just those who contract the virus. COVID-19 also carries in its wake drastic economic impacts, which in turn have caused a massive increase in redundancies, unfair dismissals, terminations and forced resignations. The domino effect of widespread business shutdowns, particularly in Victoria facing Stage 4 restrictions, is sending ripples through society – and our mental health will incur the ramifications.

If it wasn’t enough that the fear of catching coronavirus has plunged many into an ongoing state of worry and anxiety, coupled with frequently updated restrictions on going about daily life; once you add unemployment, or the threat of unemployment to the mix, it seems quite challenging to cope with it all.

What may happen to the mental health of laid-off workers?

Loss of a job or ongoing workplace issues fueled by pandemic panic is enough to exacerbate pre-existing mental health issues. However, in these unprecedented times, even those without any pre-existing conditions are not immune to mental health concerns. COVID-19 has already been linked to numerous mental health issues, including anxiety, stress, depression and insomnia.

A 2009 European study amid the Global Financial Crisis (GFC) found that every 1% increase in unemployment was correlated with a 0.79% increase in suicides in persons under the age of 65. Now, in 2020, the COVID-19 pandemic threatens to exacerbate mental health issues and suicide risk factors, which have the potential of causing a long-term rise in suicide rates.

The effect of the pandemic on mental health, as well as employment prospects, will not just be confined to the tumultuous year of 2020. Ordinarily in Australia, there are over 3000 suicides each year. However, it is projected that due to COVID-19, there may be a 25% annual increase in suicides for up to the next five years. This equates to an additional 750 to 1000 lives lost each year as a result of the coronavirus crisis. Studies show that those workers in geographical locations and sectors most affected by job losses, such as in rural and regional Australia, will be most greatly affected.

Young people are also projected to be significantly affected by coronavirus job losses, as a large proportion of them constitute the casual workforce in Australia (many have been casuals for years, with house and car payments) – usually some of the first to be let go when there has been a stoppage or slowing of work. Lost income and difficulty obtaining alternative employment may cause immense psychological and financial stress.

What can you do to safeguard your mental health?

It is easy to get caught up in the tumult of the world around us, but it is important to remember that if you do unfairly lose your job, you have options. If you believe your redundancy was not genuine, that you were forced to resign or you were unfairly dismissed, you may be able to seek compensation through pursuing your matter through the Fair Work Commission.

If you haven’t lost your job but you are facing ongoing issues in the workplace, particularly sexual harassment and discrimination, you also have options for redress. No-one should be made to feel unsafe or uncomfortable in the workplace, and your mental health should not be made to suffer, simply to keep your job. There is no doubt some employers will try and take advantage of the situation, pay you less, make you work harder, long hours, sexual harassment is increasing. What will some employees put up with to keep their job?

As experienced workplace advisors and representatives, we can help you obtain justice and support. By seeking advice and advocacy, you can put your emotional and psychological fears at bay. COVID-19 has caused tough times for all Australians, but you are not alone in your struggle. If you have unjustly lost your source of income, or you are facing ongoing issues in your workplace, we are here for you and we will fight for the outcome you deserve. Your mental health and wellbeing in the workplace is our priority.

Call us now on 1800 333 666 to speak to someone about whether you have a potential Unfair Dismissal or General Protections claim, or to just chat about your workplace situation.

Who Has the Fairest Unfair Dismissal laws?

“Equality is not a concept. Its not something we should be striving for. It’s a necessity. Equality is like gravity. We need it to stand on this earth as men and women, and the misogyny that is in every culture is not a true part of the human condition. It is life out of balance, and that imbalance is sucking something out of the soul of every man and woman whos confronted with it. We need equality” – Joss Whedon.

Equality is about ensuring that every person, including employees, have an equal opportunity to make the most of their lives and jobs. This belief stands regardless of their upbringing, their beliefs, their background or if they have a disability, every employee has the right to go to work without the fear of being treated unfavorably or unfairly. This right stands from the moment they are hired and transpires right through their employment at the company. In the circumstance where an employee may find themselves dismissed or decide to leave their employment they should do so where it is equitable and fair.

Unfair dismissal is when an employee is dismissed from their employment or are forced to resign by their employer in an unreasonable manner. A common cases of unfair / unlawful dismissal is where an employer may terminate an employee because of a protected attribute, such as their age, race, sex or sexuality.

Shockingly, it is also quite common for employers to terminate employees without warning or any reason. This is not only unfair, but a distortion of justice for all employees.

In Australia, the Fair Work Act 2009 covers the federal industrial relations system and sets out the minimum workplace protections employees and employer obligations. Beneath this Act, an unfair dismissal application can be filed with the Fair Work Commission. Luckily in Australia we have such an Act enacted and employee advocates, such as A Whole New Approach, who assist employees fight for their rights. However, what about those countries who do not have such laws protecting employees from being unfairly dismissed?

In Deloitte Legal Perspective’s (2018) global study into the specific dismissal rules of 45 counrties and their compliance formalities found that in over 75% of these surveyed countries, an employer is free to dismiss an employee but they must reinstate this employee where the dismissal reasons are deemed unjustified. Where upfront approval is only required by the Netherlands and Ecudor. A common ground of protection against these dismissal was found within certain categories of employees, such as pregnancy, was present in almost all countries.

Shockingly in a number of other countries, the employer is left with the dangerous and absolute power to dismiss an employee without any possibility of reinstatement. In almost all these countries, the length of service within a certain company is the key factor in determining the level of dismissal cost with a capped notice period and/or severance. In Brazil, Colombia and Ecuador countries, termination is only possible for the reasons stipulated or prohibited by the law, where this notice period and/or severance is not required.

Those counties in the European Union have employment laws that protect the rights of their workers, and include:

• Working time, part-time and fixed-term work.
• Protection from discrimination and equal pay rights.
• Consultation with employees on workplace matters, such as redundancy.
• Protection of employee’s rights and personal data.

However, these employment laws remain silent upon unfair dismissals. Leaving us with the question of which country has the most equitable unfair dismissal laws, if any at all, and what this means for employees rights.

Unfair Dismissal Laws in Greece

In Greece, the rules and laws that govern their employees is based upon the distinction between ‘white-collar worker’ and ‘blue-collar worker’. White-collar employees stereotypically are suit-and-tie employees, who work at a desk and perform more intellectual work. Meanwhile, blue-collar employees stereotypically refer to those engaging in hard manual labor.

Where beneath this system, the emplopyment contract for a white-collar worker is for an indefinite period, which may be terminated by the employer at any time through paying notice in lieu and/or a notice period. However, if this employee has not been with the company for more than 12 months no notice in lieu and/or a notice period is required.

In comparison, while the employment contract for a blue-collar worker is also for an indefinite period it can be terminated by the employer at any time through paying notice in lieu. No notice period is required.

“The flaw in our character is our insistence on separating blue-collar jobs from white-collar jobs, and encouraging one form of education over another” – Mike Rowe.

In Australia we have an Award (modern awards) system to which is a legal document that outlines the minimum pay rates and conditions of employment dependent on the industry they work in and the type of job they work. The key difference here is that we do not discriminate based upon this ‘white-collar worker’ and ‘blue-collar worker’ stereotype. Where historically these stereotypes have implied higher and lower social classes between the two, as it is often presumed that white-collar employees have a higher level of education and skills due to the nature of their work. For the foundations of an employment system to be based upon these stereotypes and presumptions alone is an injustice.

These indefinite term employment contracts do not set a time period for the life of the contract or a procedure for the dismissal or termination.

Quite often when an individual lands a new job, its extremely exciting for them as comes new responsibilities and experiences. Now imagine landing a job that does not have a specific date or timeline when the employment relationship is to end. A job that could last forever, sounds ideal right? Wrong.

According to Greek law, the only specific dismissal protections an employee is entitled to are for the following employees:

• Unions’ founding memers and current union officials;
• Disabled employees;
• Vacation leave period;
• Pregnant womens;
• Employees, who have been conscripted for military service

Furthermore, not only are these protections very limited but it is not necessary for the employer to give reason for the termination of an employee on an indefinitie term contract. Therefore leaving many Greek citizens left unemployed without any reason as to why by there employer.

No doubt this is the reason why Greece reports the highest unemployment rate of all EU states. Where Statista (2020) reported that in 2019, the unemployment rate in Greece was around 17.24 percent. In fact, Greece is ranked on top of all countries in the European Union with the highest debt-to-GDP ratio. As a result, Greece has had financial assistance from several countries to decrease their national debt and increase productivity. Although the country has seen a significant improvement in their rates of unemployment, to which Statista (2020) reported were a shocking 27.47 percent back in 2013. However regardless of this improvement, this serious issue of unemployment in Greece is still in existence and is actively affecting the economy.

Prehaps the real lies where if Greece had fairer employment laws requiring employers to give reason as to terminate their employees, the unemployment rate would be much lower.

Unfair Dismissal Laws in France

French Law prescribes that in order for a dismsal to be valid it must be based on a real and serious cause to which must be exact, precise, objective and of a serious nature to justify the dismissal.

In France, there are two types of dismissals:

• Dismissal for individual reasons, such as for misconduct or poor performance.
• Dismissal for economic reasons, such as those unrelated to the dismissed employee and results from job cuts, job transformation or a change in the employees employment contract to which they refuse. These changes may arise from economic difficulties, technological changes and other uncontrollable factors.

When a permanent employment contract has been terminated by the employer, a notice period must be served by the employee. However, the employer may choose to release the employee from this notice period through payment in lieu of notice. However, in a case of dismissal for serious or gross misconduct this is not required.

Where an employer wishes to dismiss an employee, they must comply with the specific rules and procedures including:

• The employer must invite the employee that they wish to dismiss to attend a preliminary meeting by a registered letter.
• This letter must inform the employee that they may be assisted during this meeting by an employee of the company.
• During this meeting, the employer must clearly inform the employee that their dismissal is under consideration and the reasons as to why.
• In the circumstance that the employee is terminated, they must be notified of their dismissal by a registered letter and acknowledgement of receipt.

The onus is on the employer to prove the seriousness of the grounds and reason for the dismissal, based upon material evidence. Any kind of dismissal must be based upon a real and serious reasons, or as they say in France, cause reelle et serieuse. If the employer is unable to provide this evidence, the employees dismissal will be granted as unfair.

According to French law law, the only specific dismissal protections an employee is entitled to are for the following employees:

• Staff representatives;
• Former staff representatives;
• Employees appointed by a trade union or from a company;
• Pregnant women;
• Disabled employees;
• Employees elected to local, national or EU elections.

Where this dismissal is deemed as unfair, employees are entitled to damages depending on the loss suffered. Where the minimum amount of compensation is set at six months salary for employees with at least two years service, with no maximum prescribed by law.
There is no doubt that France’s rules of unfair dismissal are rather strict and rely heavily upon the employer providing evidence as to why they terminated the employee. Although this may seem advantageous, as it requires an employer to evidentially show cause, it adversely makes it near impossible for an employer to dismiss an employee.

Quite often employers are left in a position where an employee may be underperforming or engaged in an act of serious misconduct. However, they do not have the factual evidence to demonstrate this because of rules governing the admissibility of evidence. Such as here say not being allowed, or perhaps a witness who also was an employee being afraid to testify against another colleague. Thus, making it near impossible for employers to terminate employees, these French laws that require such an objective and exact test.

Interestingly, Macrotrends (2020) reported that in 2019, the unemployment rate in France was 8.43%. Although this is not as large as Greece, they are still rather high. Thus, perhaps if the French unfair dismissal laws allowed for employers to get rid of employees who do not deserve to be in the role, and instead gave the opportunity for those who do this rate would be much lower.

Unfair Dismissal Laws in Australia

In Australia, an employee who feels as though they have been unfairly dismissed can make a claim and take action beneath the Fair Work Act 2009. Once an unfair dismissal application has been filed, the Fair Work Commission deals with the matter.

A person can only make an unfair dismissal claim if they are covered by a Modern Award or if an enterprise agreement applies to them and have completed the minimum employment period. To which is one year for employees of a small business (ie a business with less than 15 employees) or six months for an employer who is not a small business.

The Fair Work Commission will be satisfied an employee has been unfairly dismissed where:

• The employee has been dismissed;
• The dismissal was harsh, unjust or unreasonable;
• The dismissal was not a case of genuine redundancy;
• The dismissal was not consistent with the Small Business Fair Dismissal Code, if the employer is a small business.

Unfair dismissal claims initially begin as a telephone conciliation conference between the employer, the dismissed employee and any of the parties representatives. If unsuccessful, the claim will be heard before a member of the Fair Work Commission in an arbitration hearing. To whom will decide whether this dismissal was ‘harsh, unjust or unreasonable’.

The Fair Work Commission will look at a number of criteria when considering whether a dismissal was harsh, unjust or unreasonable, including the following:

• Whether there is a valid reason for the dismissal of the employee, which is related to their capcity or conduct;
• Whether the employee was notified of this reason;
• Any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to the dismissal;
• If the dismissal was related to unsatisfactory performance by the employee, whether the employee was warned by their employer about that unsatisfactory performance before the dismissal;
• Any other matters the Fair Work Commission finds relevant.

If an employee has been found to have been unfairly dismissed, remedies will be available including:

• Reinstatement;
• Compensation (capped at 26 weeks pay);
• Non financial remedies (such as a statement of service).

Commentary

In Australia, it is necessary for employers to ensure employees are provided procecedural fairness when dismissing employees. There is no doubt that Australia has a fair and just protection for employees through the Fair Work Act 2009. To which no employer cannot dismiss an employee for a prohibited reason, unlike in Greece where no reason needs to be provided for those on indefinite employment contracts. Yet, these rules and laws are not as challenging and harsh compared to France where it is near impossible for an employer to terminate an employee. Thus, explaining why the Australian Bureau of Statistics (2019) reported in 2019, Australia has the lowest unemployment rate out of all these countries at a steady 5.3 percent.

If you have received notice from your employer that your employment has been terminated, or you have been forced to resign, you should seek independent advice as you may be able to make an unfair dismissal claim against your previous employer.

At “A Whole New Approach”, we believe all employees have the right to be treated with the fairness and justice they deserve. This right stands regardless of their upbringing, their beliefs, their background or because of their sex, race, age or another protected attribute. Every employee has the right to go to work without the fear of being treated unfavorably or unfairly. This stands from the moment they are hired all the way through the ceasing of their employment at that company.

When an employee believed they have been terminated without a valid reason, or without procedural fairness we fight for their rights. To which we have over 20 years experience in lodging Unfair Dismissal Applications to the Fair Work Commission and ensuring our clients obtain the settlement they deserve.

If you would like to discuss a potential application, or for advice please call us for a free consultation on 1800 333 666. Please keep in mind an application of unfair dismissal must be lodged within 21 days of your dismissal. Don’t wait until the last moment to fight for your rights as an employee, as it may be too late.

“The only impossible journey is the one you never begin” – Tony Robbins

BIBLIOGRAPHY:

1 Deloitte Legal Perspectives 2018, International Dismissal Survey, Deloitte Legal Perspectives, retrieved 22 July 2020

2 Statista 2020, Unemplpoyment rate in Greece 2019, Statista, retrieved 23 July 2020

3 Macrotrends 2020, France Unemployment Rate 1991-2020, Macrotrends, retrieved 23 July 2020 .

4 Australian Bureau of Statistics 2019, Trend unemployment rate steady at 5.3%, Australian Bureau of Statistics, retrieved 23 July 2020

5 World Health Organization 2020, Coronavirus, World Health Organization, retrieved 24 July 2020

6 Australian Bureau of Statistics 2020, Employment falls 594,300 in April to 12.4 million, Australian Bureau of Statistics, retrieved 24 July 2020.