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Chief Justice of the Industrial Relations Court talks about new industrial relations laws

MONICA ATTARD: The Industrial Relations Court is the body which administers some of the new changes to workplace law in Australia. It was set up just over a year ago and its Chief Justice, Murray Wilcox, is relaxed about the criticisms of it. He says employers have nothing to fear from the industrial relations legislation, and he says they're gradually coming to terms with what the new law requires of them. Ellen Fanning visited the chambers of the Chief Justice to get his assessment of the new system.

MURRAY WILCOX: I think what it's doing is it's changing the culture in the workplace, and that's probably a good thing. The idea behind the legislation really is that a job is important to people, and that a person should not be dismissed from employment, unless there is a reason which is related to that person's performance, or conduct, or the needs of the business. That's simply just saying that employers should treat employees fairly. But in the past they haven't had to do that; they could dismiss them quite arbitrarily.

ELLEN FANNING: What's your response when you hear employers saying 'It's virtually impossible to sack someone any more'?

MURRAY WILCOX: Well, that's just simply wrong. As I've seen it, the employer can sack an employee if there's a reason related to the employee's conduct, or performance, or arising out of the nature of the operations. And if it's related to the person's performance, then they have to be given some sort of warning, an opportunity to defend themselves. That's the limitation; that's all the limitation. There is a requirement for notice to be given, except in cases of serious misconduct, but then we've been used to that for many years; it's in most industrial awards.

ELLEN FANNING: But what about, particularly, small employers who say they simply don't have the resources to comply with that?

MURRAY WILCOX: Well, I don't see that there's any great problem for resources; I think it's simply the way you treat people, and a small employer who treats people in a fair and reasonable way really has nothing to fear from the legislation.

ELLEN FANNING: What about this? - it's harder to dismiss someone under these laws and it's impossible to dismiss someone quickly.

MURRAY WILCOX: It isn't harder, providing that people go about it the right way, and procedural fairness is certainly part of the law now. It's harder in the sense that if you want to be unfair, yes, then you're in trouble, but that's all.

ELLEN FANNING: Has it got to the stage that how you dismiss somebody becomes just as important as why you dismiss somebody?

MURRAY WILCOX: Both things are important.

ELLEN FANNING: Should they be equally important?

MURRAY WILCOX: Well, I think they are equally important, and, you see, if procedures aren't followed, fair procedures, then the person is deprived of the opportunity of making a defence. Now, we're used to this in other areas of the law - the criminal area is an obvious example, but also in administrative law in our dealings with government, ordinary people, including business people, expect to be treated fairly, they expect to be given an opportunity of putting their case, and if the Government is going to use material against them, they expect to be given the opportunity of reply. Now that is all that this law requires of the way employers treat their employees.

ELLEN FANNING: Are you saying that employers perhaps have a double standard in how they're treated and how they expect....

MURRAY WILCOX: Well, I don't want to criticise employers as whole, but there may be some who don't realise that it's sauce for the goose and sauce for the gander.

ELLEN FANNING: Can you understand that some employers are frustrated when they lose a case and they're told that they're losing the case because they got the dismissal procedure wrong, even though the judge or judicial registrar might agree that they had perfectly fair grounds to dismiss someone?

MURRAY WILCOX: Yes, I can understand them feeling in that way, but I think that if they think about the moral of the case and the lesson to be learnt, they'll realise that it is important how they go about it and make sure that they don't make the same mistake again.

ELLEN FANNING: Would it concern you if employers began to feel that they can't win, that that perception grew up that they couldn't win, and therefore they'd be better off to just settle any case of unfair dismissal brought against them?

MURRAY WILCOX: Well, that would upset me because it would be founded on wrong information. The statistics show that of all the cases that are started in the court, the vast majority are, in fact, settled. But of the matters that go to court, about half and half - half are wins by the applicant, the employee, and the other half are wins by the employer. So, it's simply not true to say that the employer never wins. They win about half the cases.

ELLEN FANNING: What is your advice to employers who may be fearful of this legislation?

MURRAY WILCOX: Well, my advice to employer is this: that if you are thinking of terminating somebody's employment, to think about why you are doing it, and is this something that is related to the way that employee has performed or some action of the employee. If the answer is 'Yes, it is', then what you have to do is to tell the person that you are thinking of terminating their job and give them an opportunity of explaining themselves. Now, if you do that, you give them a fair opportunity, and you do listen to them and think about what they've said before you make a final decision, then you've got no problems about procedural unfairness, because that's all the Act requires. It doesn't require it to be in writing, it doesn't require it to be like a mini trial, it does require you, though, to be frank with people. That's, I think, the main message that employers need to understand. Beyond that, don't sack somebody unless you've got a reason for it - well, you wouldn't any way, I suppose - and give them the notice that they're entitled to, unless it's a case of serious misconduct. If you do that, there are no perils in this legislation.

MONICA ATTARD: The Chief Justice of the Industrial Relations Court, Justice Murray Wilcox, and he was speaking there to Ellen Fanning.