Workplace Relations and Safety Minister, Brooke van Velden, has today announced changes to simplify the personal grievance system to strengthen employee accountability.
The Minister said it was important employees were not rewarded in the personal grievance system for poor behaviour or performance.
“Simplifying personal grievances is a policy ACT campaigned on, in particular, removing the eligibility for remedies if the employee is at fault and is an ACT-National Coalition Agreement commitment. These changes will strike a better balance and increase certainty for employers so they can focus on their business,” says Ms van Velden.
The Employment Relations Act allows the courts to make reductions to remedies when the employee contributes to the personal grievance, but these reductions have become smaller, while awards to employees have been increasing, said the Minister.
“The status quo has led to increasing uncertainty and potential costs for employers and has incentivised employees to try their luck at raising a personal grievance in the hope that they will get a financial pay out,” she said.
“I’ve heard of personal grievance cases where employees have engaged in serious misconduct such as violence, fraud and theft, yet their former employer has had to pay them financial remedies or reinstate them into their roles.”
The Minister outlined a recent case where an employee was dismissed for falsifying information on their timesheet, yet was able to receive $10,500 in compensation and 13 weeks of lost wages from their former employer.
In another incident, a health professional was dismissed for being physically violent toward a patient, yet was still reinstated into their role following a successful personal grievance.
In a third example, the Minister said she had been informed of a case in which an employee who was dismissed for theft of company food still received $21,000 in compensation from their former employer.
“This is not the balance personal grievances are meant to strike,” says Ms van Velden.
An update to the Employment Relations Act is set to give more consideration to an employee’s behaviour when awarding remedies as a result of a personal grievance.
This includes:
- removing all remedies for employees whose behaviour amounts to serious misconduct;
- removing eligibility for reinstatement in a role and compensation for hurt and humiliation when the employee’s behaviour has contributed to the issue, for example repeated instances of poor performance.
Other, more technical changes that will have an impact on personal grievance outcomes include:
- Allowing remedy reductions of up to 100 percent where an employee has contributed to the situation which gave rise to the personal grievance.
- Requiring the Employment Relations Authority and Employment Court to consider if the employee’s behaviour obstructed the employer’s ability to meet their fair and reasonable obligations.
- Increasing the threshold for procedural error in cases where the employer’s actions against the employee are considered fair.
Examples of behaviour amounting to ‘serious misconduct’ includes [but is not limited to]:
- violent behaviour
- bullying
- sexual, racial or other harassment
- theft or fraud
- behaviour that endangers the health and safety of yourself or others
- using illegal drugs at work
- dishonesty
Contributory behaviour includes:
This could range from minor behaviours such as unproductive behaviour, repeated instances of lateness, misuse of company resources or under-performance, to more serious behaviours such as violence, theft, or fraud.
In the three years to February 2024, approximately 16% (91 out of 548 cases) of unjustified dismissal and/or disadvantage claims had some form of contributory employee behaviour. The Authority declined to award any remedies in two of those cases.
“Dismissing an employee is often a decision businesses make very reluctantly, given doing so can lower the morale of the workplace, risk harming the employer’s reputation, and because employee turnover is generally costly,” says Ms van Velden.
“Alongside the introduction of an income threshold, the changes will be progressed through the Employment Relations Amendment Bill, which I aim to introduce in 2025.”
