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The Current Employment Relations Issue of Unfair Dismissal and Pregnancy

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The Current Employment Relations Issue of Unfair Dismissal and Pregnancy

A recent employment relations concern deals with unfair dismissal. When an employee is dismissed for certain statutory reasons, is inequitable and is incompatible to the merits of the situation; this phenomenon is known as unfair dismissal. This has been a long debated issue concerning all participants in the employment relationship. Investigation of the current employment relations issue of unfair dismissal found that emphasis is placed on a case that was recently heard by the Industrial Relations Commission on sexual discrimination because the employee was pregnant. This essay will discuss the nature and significance of the issue. It will also describe the roles of the actors in the employment relationship and the tactics that were employed in order to achieve an outcome.

The once rigid unfair dismissal legislations have of recently undergone re-appraisal by the Australian Government. As such modifications were made in order to free up employer prerogatives with respect to the dismissal of unproductive employees. The following section is a literature review of the topic of unfair dismissal. The Herald Express (2005) argued the scale of protection that the workers have when they take part in a strike. As a result, two legislative laws surface; firstly, an employee is protected against dismissal for twelve weeks or longer if the employer doesn't try to resolve the disagreement. If the employee gets fired within this period it automatically becomes unfair dismissal even if the employees haven't been employed for a full year. However, if the employee breaks the contract and refuses to work and goes into strike without a vote being held, they can be dismissed straight away. In this instance it is not classified as unfair dismissal. Lamount (2005) discusses section 98 of the Employment Rights Act 1996 and mentions the potential reasons for unfair dismissal according. These reasons include; capability, conduct, redundancy and statutory restriction. Lamount (2005) goes further to and claims that an employee must have been employed for one year to bring a claim for unfair dismissal. McMullen (1999) agrees and adds that, an employee must have been employed for a year to bring a claim for unfair dismissal, however McMullen (1999) states that an employee is protected by law against dismissal during a strike.

The Accounting Age (2005) claims that any employer or manager who relies on aggressive management leadership style is more likely to be confronted with the issue unfair dismissal, from an ever growing and more powerful workforce. In addition, that with the employee protections laws, this style of management is vanishing rapidly. If an employee resigns because of verbal abuse from a colleague or a superior and the employer didn't investigate the matter properly they can claim unfair dismissal. Even if the employee had to be dismissed straight away for uncivilized misconduct, the case needs to be investigated thorough otherwise the employer could get an unfair dismissal claim.

Switzer (2005) and Orton (2005) converses about the issue of unions' slander against employers and blame them for mistreating mothers that are young and have sick children. A survey showed that one in three small businesses hesitate hiring workers due to unfair dismissal laws. One anonymous magazine employer says that he dismisses when he needs to and don't care about the unfair dismissal laws. He also adds that "if you have a bad worker, you are better of having them out of the place". He therefore bribes the fired employee if they threaten trouble. Switzer suggests the unions should help small businesses to win the war with big businesses, and that common sense and give and take must be happening on matters such as unfair dismissal and Australian Workplace Agreements (AWA). If this were to occur small business owners would not see the unions as their enemy. Goldman and Lewis (2005) debate about how the limit on uncomplicated unfair dismissal cases has been increased and makes it hazardous for employers to fire and employee in an unfair way. The Dispute Resolutions Regulations 2004 also set out mandatory procedures for examination and resolution of dismissal. The employer must first set out a written complaint, then the employer needs to inform the employee about the decision. It is important to not that the employee has to be offered the right to appeal. If the employer fails to do this procedure the award for the employee can be increased by 10-50 percent.

Knight and Latreille (2001) argue that gender affects the outcome of unfair dismissal cases. Data from the 1992 Survey of Industrial Tribunal Applications showed evidence that in North America males where more likely to sustain cases than women. It was found that gender was the only characteristics that played an integral role in this matter. Williams (1993) goes on and talks about the pregnant employee's rights. The law is that and employee with two years full-time or five years part-time employment can't be dismissed by reason of pregnancy and if she is then that dismissal will automatically be unfair dismissal. It is the employers' duty to offer her an alternative suitable employment if she can't perform her current duties. Oslington and Freyens (2005) reinforces the point of how the Government has claimed that unfair dismissal provisions has started to prevent firms from hiring workers and that most negatively affects small businesses. From the literature reviewed it was understood why unfair dismissal arises, but in the case of gender discrimination it was also found to be unfair and therefore should not occur.

The term unfair dismissal has been a complex and on-going problem since women were allowed to work. In fact it was only in 1969 that married women were allowed to work in the public sector (Human Rights, 2004). Over the last century women have struggled in the workplace; firstly for the right to work and then for equal pay and rights. Studies suggest that female employees still in today's society earn between 10-20% less then their male counterparts. The reasoning behind this is because; the female anatomy differs for the male. Simply put, the female form is intended to bear children. As a result there have been many dismissal cases where women have been fired because they were physically or had intentions to become pregnant.

According to the Australia Bureau of Statistics (ABS) the number of women working in the workforce was 55.5% in January of 2004, that trend rose to stand at 57.4% in August of 2005 compared to 72.4% of males. This means that more than half of the Australian female population works in some form or way. There is still a considerable number



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