Contributory Misconduct Reductions in Unfair Dismissal Remedies

Abstract

"When an attempt to conciliate an unfair-dismissal claim fails, arbitration may be called upon to determine whether the dismissal was fair or unfair. In the event that the dismissal is deemed unfair, Australia’s federal industrial tribunal can reduce the amount of compensation ordered for the worker if their conduct contributed to the dismissal. This article offers original insights about the application of contributory-misconduct provisions to unfair-dismissal remedies by Australia’s federal industrial tribunal. A content analysis was performed on arbitration decisions concerning misconduct-related dismissals made between July 2000 and June 2010 that awarded a remedy to the worker. It was found that reductions to remedies were more highly associated with situations where employees engaged in production deviance, had longer service histories, and apologised for their behaviour. Within the 33 decisions that recorded a reduction to the remedy, three typical remedy discounts were identified: reduced back pay, no back pay, or part reductions to compensation. It is concluded that in broad terms, the reductions may provide some sense of restorative justice to the organisation in finalising an unfair-dismissal dispute. However, these reductions may have less meaning to individual victims where the worker’s misconduct involved acts of inter-personal deviance."