Contributory Misconduct Reductions in Unfair Dismissal Remedies
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Date
2014
Authors
Southey, K
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Publisher
National Institute of Labour Studies
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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."
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Citation
Southey, K., 2014. Contributory Misconduct Reductions in Unfair Dismissal Remedies. Australian Bulletin of Labour, Vol.40 No.1, pp. 24-45