Decision Unfair For Employer

EDITORIAL FRIDAY 19.02.10.
Concern has been expressed about a ruling from Fair Work Australia that a paper mill in Albury should reinstate a former employee, and pay him compensation, even though his dismissal was justified. At a time when unfair dismissal laws are once again the subject of vigorous political debate such a decision seems to not only defy logic, but to risk discrediting the principles of providing protection from unfair treatment in the workplace. The whole concept of a “fair go” is central to the Australian way of life, but it is, and should always be a two way street. Unfair dismissal laws must provide fairness not only to workers, but also to employers.

At the Norske Skog Paper Mill, Paul Quinliven repeatedly removed his safety glasses and was told repeatedly by his supervisor to put them back on. His response to management was described as disdainful and abusive. Fair Work Australia ruled that his behavior was “relatively serious misconduct”, and that the employer was entitled to have employees take safety regulations seriously. The tribunal also recognized that “the obligations imposed on employers by state occupational health and safety legislation are onerous.” The fact is that New South Wales law is more onerous than any other state, and it would have been potentially illegal for the company not to take action.

Despite all this the tribunal found the sacking to be “harsh”, and ruled that Mr. Quinliven should be reinstated and paid $16000 compensation. The reasons for this had nothing to do with anything that occurred in the workplace, nor with anything over which the employer has any control. The reasons related purely to the employee’s personal circumstances, namely his age, level of education, family and financial commitments, and the high likelihood that he would be unable to find other employment. All these things might be “unfair”, but the employer is not to blame for any of them. In fact, in any kind of common sense world, they amount to a compelling reason for Mr. Quinliven to be less argumentative with his boss in the first place.

Nevertheless, this is the ruling of Fair Work Australia, and although it means that Mr. Quinliven gets a second chance, what does it mean for employers? On the face of it, it appears that it means bosses can do every thing correctly, obey all the relevant laws, comply with safety regulations, and still get penalized. It leaves employers in New South Wales especially with an apparent conflict in choosing between complying with the strictest OH&S laws in the country, or the seemingly nebulous requirements of Fair Work Australia.

I have always supported the need for appropriate protection for workers from unfair treatment. It should be a fundamental right to have an avenue available to seek redress when a person has been sacked for no good reason. But for that right to have any substance, for it to mean anything, it must strike the right balance by offering fairness to the employer as well as the employee. This sort of dubious decision runs the risk of strengthening the argument of those who wish to tear such protections down.