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Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals

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Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals, Unfair Dismissal Australia
No one should have their human dignity stripped away

Human Dignity in the literal sense is not set out in the Fair work Act. The Fair work Act (2009) is concerned with the attainment of fairness for both the employer and the employee. In weighing up the interests of the respective parties it is of paramount importance to ensure that a delicate balance is achieved so as to give credence to commercial reality as well as an individual’s right to dignity. Its termed in a sense of “fair go all round”, “procedural fairness”, “natural justice”, and so forth, that’s reflected in the various FWC decisions.

Fairness, what’s it mean?

In other words the attainment of fairness in the employment relationship must give cognizance not only to surrounding socio-economic reality but also to human rights. The environment within which the world of work operates has at its core a free enterprise economy. Ultimately, an employer should generally not be penalized to the extent that it is crippled and unable to continue operating. We have seen this in recent times with though workplace ombudsman pursuit of small businesses in under payment prosecutions where the small business is almost deliberately sent bankrupt, through the courts and the media. The justification being an example needs to be made of them to send a message to all employers. Its a very archaic and simplified approach which in many cases achieves nothing. The employers broke and the employees not paid.

It is argued in this article that in ascertaining what constitutes appropriate compensation for an unfair dismissal, the underlying reality that labor law operates in a free enterprise system must be and is given cognizance to by the legislation and the courts. At the same time in ascertaining what constitutes fair compensation for unfair dismissal due regard must be had not only to the employee rights contained in the Fair work Act but also to other rights protected in terms of the Fair work general protections provisions. Most importantly, the rights to dignity and equality, either a valid reason for termination of employment and if necessary a ruling on the valid reason for termination.

The fact that the basis of the employment relationship is commercial and an employer is entitled and even encouraged to make profits is reflected in our law by the fact that there are caps on the amount of compensation for unfair dismissal in the interests of business efficiency and certainty. (26 weeks pay). However, an analysis of relevant case law demonstrates that this can never be at the expense of a person’s dignity. Hence the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts.

Human Dignity reflected in the workplace.

We all know how we should be treated in the workplace, its with respect, the reason many employees read our web sites and the blogs in particular is because they are not. So I have published the definitions of the various violations and then you can relate them to your workplace. 99 percent of all employers in Australia, treat their workplace well, they realize the value of human capital to their business, its the 1 percent that ruin it.

Human dignity can be violated in multiple ways. The main categories of violations are:

Humiliation

Violations of human dignity in terms of humiliation refer to acts that humiliate or diminish the self-worth of a person or a group. Acts of humiliation are context dependent but we normally have an intuitive understanding where such a violation occurs. As Schachter noted, “it has been generally assumed that a violation of human dignity can be recognized even if the abstract term cannot be defined. ‘I know it when I see it even if I cannot tell you what it is’”. More generally, etymology of the word “humiliation” has a universal characteristic in the sense that in all languages the word involves “downward spatial orientation” in which “something or someone is pushed down and forcefully held there”. This approach is common in judicial decisions where judges refer to violations of human dignity as injuries to people’s self-worth or their self-esteem.

Instrumentalization or objectification

This aspect refers to treating a person as an instrument or as means to achieve some other goal. This approach builds on Immanuel Kant‘s moral imperative stipulating that we should treat people as ends or goals in themselves, namely as having ultimate moral worth which should not be instrumentalized.

Degradation

Violations of human dignity as degradation refer to acts that degrade the value of human beings. These are acts that, even if done by consent, convey a message that diminishes the importance or value of all human beings. They consist of practices and acts that modern society generally considers unacceptable for human beings, regardless of whether subjective humiliation is involved, such as selling oneself to slavery, or when a state authority deliberately puts prisoners in inhuman living conditions.

Dehumanization

These are acts that strip a person or a group of their human characteristics. It may involve describing or treating them as animals or as a lower type of human beings. This has occurred in genocides such as the Holocaust and in Rwanda where the minority were compared to insects.

https://en.wikipedia.org/wiki/Dignity

Your rights and excising them

As I read this list I’m shocked how many phone calls I get, daily, weekly, monthly, that I can directly relate the violations above to the incidents, stories that employees tell me. I’m shocked when I re read the violations how common they are in the workplace, this simply should not be the case. We have a page up with information how to deal with toxic workplaces, I hope this helps and gives you options how to deal with toxic workplaces and stripping away your human dignity.

You have to be aware you do have rights, its feeling empowered enough to excise them is the challenge. Balancing up between the need to continue to pay the mortgage, take care of your family, enjoying the benefits that a income brings you or complaining how you are being dehumanized. In other words, treated like crap, and in turn feeling like crap.

Where there has been discrimination or an impairment of the employee’s dignity, there are no such limits as to the amount of compensation a court can award. If there has been unfair discrimination, the courts may even award punitive and non-pecuniary damages. Human Dignity has always been a consideration for the various Discrimination tribunals and commissions both federally and state based

We are A Whole New Approach P/L, we are not lawyers, but the nations leading workplace advisors, as you can see from our blogging we are very active participants in the are of workplace law, our skills, experience and advice is current and first class. Any matters relating to the Fair work Commission, we are for you. unfair dismissals, redundancies, forced to resign, whatever. We work in all states. Vic, NSW, Qld, SA, WA, Tas, NT

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