Wednesday, February 03, 2010

The matter is published on the boards of ABC’s ‘Four Corner Open Letters’

In response to the ABC’s article ‘New year farewells WorkChoices’ of 1 January, I wrote an open letter on 6 January to the ABC’s ‘four Corner’, which is published on the ABC’s webpage:

What ‘Choices’ are left?

It sounds good ‘New year farewells WorkChoices’ However the effect of the Howard’s campaign to slash workers’ right has not gone. Analysing bullying and retaliation cases in last few years we may find employees don’t have the right to make complaints against employers.

Could, a worker be sacked due to complaining about bullying and harassment to union, like Victor, a long serving employee, a union’s Health and Safety Representative?

He was sacked. A judge found he was sacked due to his complaint to union about the manager’s bullying and harassment. However, the termination was not unlawful. What option is left for workers when they do not have the right to make a complaint?

As employers can legally sack employees due to their complaints, employers can do whatever they want to do.

Damien made a complaint in writing to the Employment Ombudsman about his wages and conditions of employment, and believed that he was sacked soon due to his complaint. He filed an unlawful dismissal claim to the Industrial Relations Commission. A commissioner told him that he could not make such claim because the Ombudsman was not a Court or Tribunal; to meet the threshold of claiming unlawful dismissal, he had to file a complaint to a Court or Tribunal before his dismissal.

It was out of Damien’s imagination that he followed the Government’s advice, but the Court did not uphold. The Government says workers can complain about their underpaid wages etc, so he filed his complaint. The consequence was that he got even worse—being sacked.

The Government has never said: to prevent retaliatory dismissal, workers have to file complaints to a Court or Tribunal before the filing of complaint to the Employment Ombudsman or whatsoever. However, the Court and the Commission hold the Government in effect states that.

In response to the Court’s interpretation, the Government replies the Court’s interpretation is incorrect, but cannot do anything about it.

A study conducted by Curtin University of Technology in 2007 found workers believe if they were seen as rocking the boat they might be ousted.

To avoid retaliatory dismissal, legal advice for workers is that you shouldn’t complain about boss including boss’s apparently unlawful activities. It flies in the face of the Governments’ assertions summarised below.

The Government asserts (on documents, websites, news releases, etc):

  • it is a workplace right to be able to make a complaint,
  • it is against the law for the employers to threaten to dismiss employees for making a workplace complaint, and
  • it is unlawful to sack a worker due to the filing of a complaint against his or her employer involving alleged violation of laws,
  • the Government has no tolerance for conduct which breaks the law.

No doubt the conflict between the Government information and legal advices leave employees just as confused and upset as the employers. To clarify the confusion, prevent both conflict and frustration and let both worker and employer make fully informed decision with respect to:

  • workers’ right to make complaint,
  • bosses’ right to manage their business,

a public debate is needed. The Government may get ideas on how to solve the problem through the debate.

(If you want to know more about bullying or retaliatory and unlawful dismissal, and to share your real stories, comments or suggestions, please look at website: