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Calls to increase cost for lodging unfair dismissal claims

Employsure managing director Ed Mallett highlighted data drawn from the firm’s 270,000 annual calls to its advice line, with 65 per cent of businesses saying Australia’s workplace laws are “too confusing”.

Small Business Association of Australia Chief executive, Anne Nalder.

Small Business Association of Australia Chief executive, Anne Nalder.

The cost of bringing a claim could be increased to “deter unmeritorious claims”, the submission said.

Small Business Association of Australia chief executive Anne Nalder said the idea of increasing hurdles to make a claim, including application costs, was “very, very valid”.

“If things are too easy, people do make vexatious complaints. Essentially small businesses then cough up “go away money”, and it’s making a mockery of our legal system,” she said.

The association and Employsure are also championing a change to workplace law to allow the Fair Work Commission to review applications and reject cases where the applicant is ineligible to make a claim before the employer is contacted for conciliation.


The calls come after Small Business and Family Enterprise Ombudsman Kate Carnell called for an overhaul of the country’s small business dismissal code. 

Ms Carnell recommended a number of changes to the laws including a widening of the definition of “serious misconduct” as a grounds for dismissal.

More than 3,500 complaints were brought to the commission in the first three months of this year, though most were settled in mediation with just 172 making it to a hearing.

On Tuesday Attorney General and Minister for Industrial Relations Christian Porter said the government had “already identified the small business code as a possible area of reform” as part of the federal government’s review of the industrial relations system.

Dismissal laws “not Tattslotto” for employees

However, legal experts warned there was no need to increase the hurdles to have an unfair dismissal case heard.

“I think the barriers are already substantial — an employee has to either represent themselves or pay for a lawyer,” professor of workplace law at RMIT, Anthony Forsyth, said.

He said it was important to note that most unfair dismissal cases are settled quickly and employees do not launch them in hopes of securing significant compensation.

“The compensation employees are typically awarded if they do win is typically like $5,000 or $6,000. This is not Tattslotto for employees,” he said.

This is not Tattslotto for employees.

RMIT law professor Anthony Forsyth.

Smaller operators sometimes do need an “easier path” to deal with dismissal claims which is why the small business fair dismissal code was orginally set up, Professor Forsyth said.

“Though I think the problems that are there [in the system] particularly for small businesses are blown out of proportion,” he said.

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