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February 27th, 2008

It’s unfair! - small business

By Mark Bahnisch

Predictably, perhaps, the government’s move to reinstate unfair dismissal protections for employees in organisations with less than 100 staff is copping flak from small business reps (and lawyers who might reasonably be thought to be engaged in special pleading, since the intent of the changes is to make the process less legalistic).

Never mind the fact that there will be a twelve month probation period before the provisions apply, and that they won’t apply where there are less then fifteen employees. “Red tape!”, “uncertainty!”, “inflexibility!” are the cries. Julia Gillard and Craig Emerson are actually trying to make things easier for bosses - by removing lawyers from the process (as in the Queensland jurisdiction) to cut down costs and facilitate access, and by proposing a code for employers’ guidance. But the sticking point is apparently the suggestion that employees should be warned and given explicit details of what is lacking in their performance.

There’s something more going on here than meets the eye. Australia, in contrast to countries with a civil code, has never really had a system of individual employment rights. Traditional union collectivism wasn’t necessarily about this sort of model at all (the response to a dismissal in the old days being industrial action). There doesn’t seem to be much recognition on the part of employers and the managerial class that a jurisprudence of individual rights in the workplace is an appropriate way forward.

If WorkChoices was about anything (and the arguments linking it to “economic reform” were always spurious), it was about an anti-union crusade but also about the defence of managerial prerogative - something that has been a sacred cow for business in this country since the Deakinite settlement. Much affect seems to cluster around the sacred rights of property - and the apparent desire to treat employees like disposable property. It really is time for this mindset to change - it does no one much any good, and certainly isn’t good for business as opposed to the egos of business people. What is really wrong with having just cause for dismissing someone, and being able to articulate that? You don’t need a huge HR department to work out why you think someone should be sacked, or to realise that it’s basic fairness that they should be given a chance to remedy any problems with their work performance.

Cross-posted at Larvatus Prodeo.