Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I move amendment (7) on sheet 5746:

(7)    Clause 388, page 324 (after line 3), after subclause (1), insert:

     (1A)    The Small Business Fair Dismissal Code must provide that, prior to giving a person a notice of dismissal, an employer must:

             (a)    give the person warnings, in writing, that the employer is considering dismissing the person, including details of the reasons the employer is considering that action; and

             (b)    take all reasonable steps to meet with the person to discuss the warnings.

This amendment relates to job security and unfair dismissal and redundancy. Some of these issues we have dealt with previously, but amendment (7) in particular relates to removing the discrimination against employees of small business. We have had a very long debate, I know, about unfair dismissal and the definition of small business, so I will try and keep this short. We believe the small business fair dismissal code must contain a requirement for written warnings. The committee inquiry heard a great deal of evidence about how allowing oral warnings could compound the unfairness to small business employees in particular. Asian Women at Work, for example, told of the prospect of an employer issuing a verbal warning in the midst of erratic and unwarranted abuse and bullying without any possibility of the worker making a serious response in their defence or even acknowledging that it was a warning in the first place. Verbal warnings are highly unreliable. It is likely they will be contested as to what an employer said and whether it constituted a warning or whether an employee understood what was required of them to meet their employer’s concerns, particularly if any warning is given in emotional circumstances. We believe greater formality is needed.

We believe our amendment requiring written warnings is essential if we are actually properly to address the issue of fairness in this bill. During the committee inquiry we were given a number of examples where, for example, a manager or boss was being quite abusive to an employee and it happened on repeated occasions; it was not a one-off. So when is the employee to know when that abuse or that shouting at the worker or telling off of the worker was actually a reprimand or whether it was a formal warning? We believe relying on oral warnings will unnecessarily confuse things, in fact probably make things more complicated for small businesses, but also it leaves workers extremely vulnerable. Again here we are talking about some of the most vulnerable workers in our workforce, and very often we are talking about workers who come from a non-English-speaking background and so have even further problems understanding an oral warning. At least if it is a written warming they will be able to go and seek advice about it to in fact understand what is being said to them in terms of the warning.

We believe this amendment is particularly important in delivering fairness through the small business fair dismissal code. It is called the small business fair dismissal code for a reason. We believe it is much fairer to deliver a warning in writing than to just rely on oral evidence.