Do we really achieve justice and satisfaction from our day in a Fair Work Australia hearing?
‘Every time I get fired I go out and buy myself something’ confessed notorious spendthrift and comedian Joan Rivers, discussing her compulsive shopping habits in a recent television interview with celebrity psychologist Pamela Stephenson, aired on the ABC.
The comment caused me to reflect; why is it that in our country, when we are ‘fired’, our immediate priority is to smite the ex boss with an unfair dismissal case? Don’t get me wrong, I’m not advocating a spontaneous shopping spree in the face of lost income; rather I’m interested in how some cultures accept that getting the sack occasionally is part of life, whilst others see it as a travesty, an outrage, something that their government should be immediately and intimately involved in. Why do we in our country demand vengeance and financial remedy?
Employment is a relationship; a very important one. We all spend a large part of our lives in the workplace. And as with all relationships, it is guaranteed to end. Whether through dismissal, resignation, redundancy or death, we will all one day be put out of our job. So it is with our marriages too, but when these end, we don’t demand our Government step in, examining in detail who said what and when, looking at evidence of misdemeanors and making a judgment on who is at fault and why. Our society progressed beyond that long ago with a concept called no fault divorce. The concept accepts that relationships break down and there is no point going into why; it just has and parties to a relationship are allowed to part ways. So why is it that we can’t be that progressive and mature about our employment relationships too?
The idea of unfair dismissal is a relatively new thing in Australian employment law; once upon a time the concept did not exist. Consequently, when people were sacked their immediate focus was on getting another job as quickly as possible; this was a good thing, it made them move on. But when the legal concept that a dismissal could be either ‘fair’ or ‘unfair’ was introduced, the focus of newly dismissed people began to be prove it was unfair, thus channeling them onto the conveyor belt of a legal dispute; a process that prevents moving on and encourages one to wallow in anger, self pity and delusion about the circumstances of ones dismissal. After all, if you want to convince the Judge of your case you had better convince yourself first.
When someone puts in an unfair dismissal application their life stops, all processes of healing hurt and moving forward are put on hold as the person waits for the outcome, their day in court, the delivery of the justice and emotional validation they feel they need. They don’t look for another job; the focus is on building their case, the minutia of their evidence and calculating how much money they will walk away with after representational fees are paid. Their expectations are of financial recompense, greatly fed by their representatives- often irresponsibly. Their expectations are also that the Judge will stand up, look them in the eye and pronounce ‘you were treated terribly, how awful for you, I am so sorry’ and bang the gavel loudly.
I have been sacked, I have represented people who have been sacked and I have sacked hundreds of people; in my role as defendant of that I am never as cheerless as when I witness the applicant’s realization that their promised day is far less satisfying or profitable than anticipated.
Our community clearly has the expectation that employers should not be able to sack at will with no good reason, placing ex employees out on the street with no income at a moments notice. Additionally, our community has the expectation that employers should be able to dismiss workers if they feel they need to. Here is where the key to the current problem lies; by having a legal framework that insists a dismissal must be either legally determined to be ‘fair’ or ‘unfair’, we give the government of the day the power to deem, really whether a dismissal should have happened or not. This is patently ridiculous; if a human relationship be broken, a Government declaration or remedy cannot mend it. And this is the theory employers quite rightly rail against; who is the government to decide and judge whether a dismissal should have happened or not and why is it not the right of an employer to decide to end the relationship? After all, employees have that right and there is no facility for an employer to do a god dam thing about it.
Further, our current process is costly, very costly. By the time you add up the cost of the Court’s time, the representation, the employer’s defense, the time lost and the employee’s loss of income through not looking for other employment, it all gets quite ridiculous and it would be cheaper for us all to go shopping with Joan Rivers. The current system also fails to satisfy workers; once their day in Court is over, win or lose, they are back to where they started, without a job, often owing their lawyer more than their winnings and forgotten by everyone because the case is finished. The process has cost them 3-6 months of their lives and emotionally knocked them around; it’s pretty awful to sit there mute whilst you’re ex boss and some of your former workmates make witness to how crap you were.
What we need to do is to consider the concept of no fault dismissal followed by a comprehensive job transition service. No fault dismissal removes the argument over whether it is fair or unfair and the costs of mounting that argument. It reduces the emotional damage done to all parties; the great chunks of their lives they lose. It forces the ex employee to accept the decision and move on. Some of the great financial savings of making this policy change could be redirected into the job transition service, providing an assistance package for the sacked worker; counseling if required, assistance in the means of finding a new job and money to pay the bills. The contribution could come from Government or business or both; in any case it would cost a lot less that the system we have now.
Perhaps one day, when we grow up, we will progress beyond the desire to run childlike to the Government when we are sacked, demanding to name, shame and fine our boss. Perhaps we will be big enough to accept that working relationships end and it we all have a day that is our day to be sacked. A no fault dismissal system would set our heads right on the issue and provide for a much greater dignity of exit; allowing us to focus on managing our departure in our chosen way whilst looking forward to the future opportunities that are always just around the corner.
