No business would treat Holgate the way the PM did

Female support for the Coalition is in free fall. And after this ugly, angry, gratuitous demonstration of power by our PM, is it any wonder?

Former Australia Post boss Christine Holgate is seen following the NSW State Funeral for Carla Zampatti in Sydney. Picture: NCA NewsWire/Joel Carrett NCA NEWSWIRE POOL

It was an ugly sight last November when our Prime Minister brought down the might of his office on the head of the boss of Australia Post. What occurred that day was a harsh, unjust and unreasonable termination of a person’s employment and a brutal wrecking of their reputation and standing.

Worse, it was executed in anger, with a gratuitous demonstration of power. The sorry event, which many in the federal government regret, will have grave implications at the next election.

To many, Christine Holgate’s resignation provides further evidence of a problem within Liberal Party culture and its “problem with women”.

Incidentally, new research from Swinburne University shows female support for the government in free fall. In the final quarter of last year, support was 44 per cent, and in the first quarter of this year it is 29 per cent.

Holgate’s resignation showcases how those who make the law can act as though they are above the law; that the business of politics is so important that it trumps all else and provides sufficient justification for inexcusable conduct.

It doesn’t matter that Labor started the complaints about the issue or that the watches given to four Australia Post executives were Cartier. It doesn’t matter that giving them to people doesn’t pass the pub test with some, and that a comment was made about them not being given with taxpayers’ money and that this comment was ill-advised.

Ms Holgate appears before a Senate inquiry this week.

What matters is that the response to Holgate’s alleged transgressions was totally unreason­able. Put partisan loyalty aside and imagine any private sector employer treating an employee the way Holgate has been treated.

Say, for instance, there was a crowded industry function, with all employees, customers and even competitors present, all being live-streamed on social media. The boss stalks in, storms up front to grab the microphone, points at an employee and yells at them that they are stood down and to get off the premises right now. Later it emerges that the thing the employee had done wrong was something that was lawful, in line with the previous conduct of others, with management sign-off, and that it occurred two years earlier.

Granted, it is difficult to imagine this scenario occurring. This is because no employer would behave in this fashion and, if they did, everyone present would be disgusted. Only the most blinkered sycophants would side with the boss.

The employee would head off to the Fair Work Commission to win potential maximum compensation, and the workplace culture for those remaining would be seriously compromised.

Protests that Holgate was not sacked but resigned in writing are irrelevant. Where an employer makes a work scenario so untenable that the employee has no option other than to tender a resignation, this is considered a constructive dismissal. So Holgate’s resignation letter doesn’t let the government off the hook.

As for the rest of us, we are witnesses now to Australia’s most public unfair dismissal. We are responsible, too, for the costs that will be incurred.

In technical terms, Holgate probably cannot make an unfair dismissal claim to the Fair Work Commission. The Fair Work Act has a high-income threshold. It is moved upwards every year, but at the moment the threshold is $153,600. Employees who earn above this amount and are not covered by a modern award or enterprise agreement cannot access the unfair dismissal system, no matter how unfairly they have been treated. So unless Holgate is covered by an award or enterprise agreement, this avenue is not accessible.

Note that any employee, no matter how high their earnings, can make a claim for unlawful dismissal, as distinct from unfair dismissal, but the definition of an unlawful dismissal is confined strictly to a sacking based on specific discriminatory grounds, which are listed in legislation. For example, sacking someone for their race, sexuality or gender is unlawful no matter how much they earn.

However, proving an unlawful dismissal claim is quite difficult; applicants need irrefutable evidence that the dismissal occurred because of the discriminatory reason and not for another reason.

When considering any dismissal case, whether unfair or unlawful, the conduct of the employee after the dismissal forms part of the evidence. In her conduct this week, Holgate presents as credible, truthful and reasonable. On the stand she would make a compelling witness.

Usually, highly paid executives seek remedy for unfair dismissal outside the employment law system, in the Federal Court, around breaches of contract.

Regardless of whether any legal remedy is sought, in the eyes of a reasonable person Holgate is the wronged party here. Even if there was sufficient cause to dismiss (and I don’t think there was), the process used fails workplace relations standards and community expectations.

In time, Holgate’s treatment may well be viewed as a pivotal moment in the deterioration of this government’s fortunes.