Unfair Dismissal and the Remedy of Re-employment

Abstract

Australia's three most active unfair dismissal jurisdictions during the first half of this decade—New South Wales, South Australia and Western Australia—all possessed highly developed systems that exhibited many enlightening parallels with dismissal dispute mechanisms in Britain and the United States. One is particularly evident in the disparate rates of re-employment between those systems that limited eligibility to union-sponsored claimants, and those that did not. Against the backdrop of a continuing debate both here and abroad concerning the most appropriate remedy for unfairly dismissed workers, the author argues that it is unrealistic to expect high rates of re-employment in jurisdictions where eligibility is not contingent upon union support. He concludes that this is not so much due to the operational shortcomings of systems based on universal eligibility as it is to the intrinsic differences in dispute-resolution processes; differences brought about by the collective strengths and the organizational services of trade unions.