An analysis of unfair dismissal grievance arbitration in Australia

An analysis of unfair dismissal grievance arbitration in Australia

[Abstract]: This study identifies statistically significant associations between unfair dismissal arbitration decisions and inherent characteristics pertaining to the unfair dismissal claims. The inherent characteristics examined are the industry sector in which the employee worked, the occupational skill level of the employee’s position, size of the business, presence of human resource expertise within the business, the reason for dismissal, and the genders of both the employee and arbitrator. This research contributes to the body of knowledge on grievance activity within the workplace. It focuses specifically on arbitrated grievances and as such, AIRC unfair dismissal decisions are investigated as an exemplar of arbitrated grievance activity. This study is within an Australian context which may limit its world-wide generalisability but its strength is that it addresses across industry and across occupational data.

Empirical analysis is undertaken using data collected from unfair dismissal arbitration decisions made by the AIRC during 2004 and 2005. Three hundred and eighty-four (384) cases are analysed, with 34.4% of the arbitration findings occurring in the grievant’s favour and 65.6% in the employer’s favour. It is noted that this figure is inflated in the employer’s favour because it includes cases lodged and later rejected by the commission for jurisdictional reasons. The split counting the 274 within jurisdiction cases is 51.8% in the employer’s favour and 48.2% in the grievant’s favour. The results of chi-square tests indicate that six characteristics have statistically significant association with the arbitration outcome. These characteristics are: occupational skill level of the grievant; the size of the business; the presence of HR expertise; the reason dismissed; the grievant’s gender; and the arbitrator’s gender. No association was found between the industry sector and arbitration decision, although there is a significant association between industry sector and jurisdictionally rejected claims.

The collective finding of the hypotheses tests suggests that the type of aggrieved employee associated with a favourable arbitration outcome is one from an organisation of between 50 and 100 employees without an HR expert, working in a lower skilled occupation, having been made redundant, is female and appears before a male arbitrator. Whereas, the type of employer associated with a favourable arbitration outcome is one who has either up to 50 staff, or over 200 staff with an HR expert, who dismissed a male employee working in a higher skilled occupation for serious misconduct with the case before a female arbitrator.

A major policy implication of this research relates to the Rudd government’s proposed legislative reforms of the unfair dismissal provisions. This study identifies disadvantaged groups of workers when it comes to dismissal practices of employers, namely employees from businesses of 50 to 100 workers and lower skilled workers. Identified also was the need for training for businesses to enable them to engage in procedurally fair redundancy processes and for gender bias awareness for arbitrators. In terms of further research, this study provides the foundation for predictive statistical analysis. The variables suitable for further analysis are occupational skill level, business size, reason for dismissal and gender in relation to their influence on the arbitration outcome. Additional descriptive research could also be conducted in terms of conducting international comparatives with a view to identifying the outputs that different legislation/arbitration frameworks produce for workers and employers.