Following months of anticipation, the Employment Relations Amendment Bill has finally (crash) landed. The intent of the bill is to “provide businesses with confidence and support to grow, hire, innovate, and increase incomes”, however it has received mixed reviews.
The bill is aimed at addressing alleged shortcomings in our system, which have “constrained flexibility and created unintended costs and risks for employers”. This is said to be achieved by providing greater certainty for contracting parties, strengthening accountability for employee behaviour during the personal grievance process, and introducing a salary threshold for unjustified dismissal claims.
While the bill brings in a number of sweeping changes it is relatively light on detail. In its present form, the bill leaves us with more questions than answers. It also appears to lack the “balance” it claims to reintroduce.
This is particularly evident in the proposed amendments to how remedies are assessed where an employee establishes a personal grievance.
Under the proposed legislation, if an employee’s behaviour “contributed” to the situation that led to the personal grievance, they will lose the right to be reinstated, and their remedies may be reduced by up to 100%. Further, if the behaviour amounts to “serious misconduct,” they will not be eligible for any remedies at all.
The most obvious gap in the intended legislation is the absence of any definition of employee “contribution”. Does this mean any contribution, or does it need to be a significant and material contribution?
It is difficult to imagine many dismissal scenarios where an employee is completely faultless. If this is enough to disqualify an employee from being awarded any remedies, it could apply in most cases, rendering the right to bring a personal grievance pointless.
The bill also increases the threshold for procedural errors to narrow the focus to whether this resulted in the employee being treated unfairly. The Authority and the Court will also need to consider whether the employee’s behaviour obstructed the employer’s ability to meet their obligation to be fair and reasonable.
These changes risk undermining established legal principles, distorting the balance of power in employment relationships, and disrupting the carefully calibrated approach of the Employment Institutions to contributory behaviour.
The current Act already provides for the Authority to reduce compensation and refuse reinstatement if an employee materially contributed to their dismissal and conducted themselves in a blameworthy manner. This reduction must be proportionate, and this requires the Authority to exercise its discretion after considering the full circumstances of the case.
The blanket ban on remedies under the proposed bill, strips away the discretion of the Authority and makes this a black and white assessment. As currently drafted, any level of contribution could result in the employee being disqualified from receiving remedies, including reinstatement.
Originally published in The Post
