Literature Review
Discuss how unfair dismissal provisions in Australia teach lesson to the employers, and ensure protection of the employees.
Many experts show concern in context of the current federal ‘unfair dismissal’ legislation such as Federal government sated that, this legislations is unwieldy and procedure established in this legislation demand small business operators to ensure expertise in common law. It must be noted that Federal legislation in this area is quite recent, and it highlights the employee’s ability to seek relief from the ‘unfair dismissal’. It is the part of the state jurisdiction since the Federation, and since the established of the Workplace Relations Act 1996 the process and procedures of both the state and Federal systems have usually been the same. The concepts related to the unfair dismissal in context of the federal legislation come in witness since 1993 and this legislation sis resulted from the Industrial Relations Reform Act, 1993 which is considered as the amendment of the Industrial Relations Act 1988. It must be noted that, there is long history of the establishment of the unfair dismissal in the Australia, and the main purpose of this establishment is to ensure justice with those employees who are dismissed by their employer on the basis of unfair grounds, and it also teach the lesson to the employers of the organization.
Research topic of this paper is “Unfair Dismissal in Australia- Lesson learns to employers”, and the research question for the purpose of this paper is “how unfair dismissal provisions in Australia teach lesson to the employers, and ensure protection of the employees”. This paper mainly highlights the main purpose of unfair dismissal provisions. Structure of this paper includes the literature review, and after that brief conclusion is stated.
It must be noted that, maximum but not all the all the employers operates their business in Australia are covered under part 3-2 of the Fair Work Act 2009 (Cth) (the Act). Those employers who are not fall under the provisions of these laws and do not meet the definition sated by the national system employer under the Act are usually State employers are generally state employers and fall under the state scheme.
As Nick Ruskin K & L Gates (2014) further stated that, even though not all the employees of the national system employers are protected from the unfair dismissal, but following are the employees who are protected:
- Any employee who completed almost service of six months on continuous basis, or in the case of an employee of a small business employer, service of twelve months on continuous basis.
- An employee on whom either Modern Award or an Enterprise Agreement is applicable or an employee whose annual rate of earnings, excluding superannuation under the Superannuation Guarantee Legislation is below or equal to the high income threshold.
It must be noted that for ensuring the dismissal under this Act, the employment of the employee must be terminated at the employer’s initiative. In other words, resignation of the employee cannot be considered as the termination unless such resignation falls in the scope of constructive dismissal. As stated by the ELCWA, constructive dismissal arises at the time when the employer leaves no option for the employees other than resignation because of his conduct. In case, employment of the employee is of fixed term nature and expires, then the ending of that employment will not be considered as termination of the employee by the employer. Claim related to unfair dismissal is not considered as the valid claim, if an employee is under the training arrangement and the employment is terminated at the end of the arrangement.
Considerations for Employers
In case, employee has been unfairly dismissed or sack by their employer, or they were forced to resign because of the conduct of their employer, then they have right to file claim under the Fair Work Commission for reinstatement or compensation. Their claim can be considered as the unfair dismissal claim if they are dismissed and their dismissal was harsh, unjust, or unreasonable.
It must be noted that, unfair dismissal applications are too common in nature, and regularly employers find themselves in hot water when they also receive any such application. However, decision in context of the unfair dismissal case inclines on the basis of its own individual merits, but these provisions teach important lessons to the employers and also provide opportunities to gain knowledge in this area of the law. For the purpose of assisting the employers in managing the risks related to the unfair dismissal claim, some important cases and verdicts of the judges are stated in this paper by the Fair Work Commissions.
Before dismissing the employee, it is necessary for the employer to consider number of factors such as, employer must ensure that he consider all the situations of the employee conduct and also consider hen these situations arise. In case law, West v Holcim (Australia) Pty Ltd [2017] FWC 2346, permission was given by the applicant employee to the casual labor hire worker to operate the crane without any proper supervision, and this permission was given instead of the fact that the labor hire worker receives no training and not able to report the resulting incident in which piece of steel carried by crane nearly hits the another employee. The evidence provided by the employee was clearly accepted by the commission, in which employee stated that employer allowed various non-trained casual labor hire employees to operate the cranes and this was in the knowledge of the supervisor and two managers, and this was done without any incident or reprisal. In this case, court took the decision in favor of the employee and reinstates the employee in the organization. This provision of the unfair dismissal clear provides the lesson to the employer to consider all the situations in which any action was taken by the employee before terminating the employment of employee.
There are number of issues on the basis of which employer terminate without providing opportunity of being heard to the employee such as while terminating the employee’s employment on the basis of the CCTV footage, employer must ensure that employee gets the opportunity to examine and respond on the basis of the footage before any such dismissal. In case law Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores [2017] FWC 32, store manager was dismissed by the employer in context of the serious misconduct and amid allegations of the theft. In this case, decision of the employer was based on the CCTV footage under which store manager was seen by holding the Four 50 dollar notes. Employer was not given by the store manager to properly examine the CCTV footage and not the opportunity to clarify his points. In this case also, commission give the decision in the favor of the employee and stated that dismissal claim of the employee was succeeded. This case teach the important lesson to the employer, that very few situations are there in which employer is not under obligation to provide opportunity of being heard to the employee, otherwise, in every situation, employer is under obligation to provide the opportunity of being heard to the employee.
Lessons for Employers
This case also teaches one more important lesson to the employer, as larger the employer, the higher the expectations in context of the disciplinary process. As stated by the Senior Deputy President Hamberger of the Commission, Salvation Army handled the situation very critically. In context of the large employer, he expected the Salvation Army to adopt the hard and fair procedure for investing this matter. In other words, Salvation Army is the large employer and their conduct for investigating this matter cannot be appreciated. However, this lesson is also for the small business employers, that they cannot make any excuse in the adoption of the poor disciplinary process.
In case of end of the employment by the employer in context of the poor performance of the employee, employer is under obligation to ensure that he must give notice for the same to the employee and notice must contain that in case of failure on part of the employee to improve the performance can result in the termination. In case Welsby v Artis Group Pty Ltd [2016] FWC 2251, Court held that failure on part of Mr. Artis to give warning To Mr. Welsby, that his employment was in danger because of the poor performance of the SA Branch’s on continuous basis was clear evidence that his judgment to end the employment was harsh, unjust or unreasonable. This provision highlights the importance of warning on part of the employer before dismissing the employee.
Employer before dismissing the employee must consider that high income paid to the employee fails to prevent the employee from being covered by an award. This is considered as one of the most important lessons teaches by the unfair dismissal provisions to the employer. Before initiate the procedure of the employee dismissal, it is necessary for the employer to satisfy himself whether employee is covered by the award or not, and in case any chance is there that employee might be covered under this award, then adoption of the process as though unfair dismissal can be an available remedy (Kaufman v Jones Lang LaSalle Pty Ltd T/A JLL (2017) FWC 2623).
Last but not the least lesson learned by the employer in context of the employees hired by labor, companies do not have automatic right to dismiss the employee if host employer does not wants the employee to be around. In case Tasmanian Ports Corporation Pty Ltd v Gee [2017] FWCFB 1714, the Full Bench of the FWC stated, in case host employer does not want the employee tow work for them, then in such case labor hired by the company must adopt the acceptable procedure and not only accept the views of the host employer. Court further stated that in case termination was done because of the capacity reason then Labor hired must consider the opportunities for the development of the employee.
Conclusion:
These provisions teach various lessons to the employers in context of ensuring the employees protection, and also provide the opportunity to the employers to improve their efficiency by save themselves from any such claims. Unfair dismissal applications are too common in nature, and regularly employers find themselves in hot water when they also receive any such application. However, decision in context of the unfair dismissal case inclines on the basis of its own individual merits, but these provisions teach important lessons to the employers and also provide opportunities to gain knowledge in this area of the law. For the purpose of assisting the employers in managing the risks related to the unfair dismissal claim, some important cases and verdicts of the judges are stated above
References
Website
Nick Ruskin K & L GATES, (2014). Unfair dismissal laws and practice, < https://www.klgates.com/files/Publication/acf17158-abb5-4928-b880-01d5a8a35d05/Presentation/PublicationAttachment/15047590-dbcf-4f8a-9ba0-037226f89b87/InHouseCounsel.May2014-Unfair_Dismissal_Laws_and_practices_NRuskin.pdf>, Accessed on 25th May 2018.
FWO, Unfair Dismissal, < https://www.fairwork.gov.au/ending-employment/unfair-dismissal>, accessed on 25th May 2018.
ELCWA, Fact Sheet – Constructive dismissal: when you are forced to resign, < https://elcwa.org.au/assets/factsheets/Constructive%20dismissal/Constructive%20dismissal%20-%20when%20you%20are%20forced%20to%20resign.pdf>, Accessed on 25th May 2018.
Thompson solicitors, Summary of the law on unfair dismissal and redundancy, < https://www.thompsonstradeunion.law/media/1175/unfair-dismissal-a-summary-of-the-law-thompsons-solicitors.pdf>, accessed on 25th May 2018.
FWC, Unfair dismissal, https://www.fwc.gov.au/termination-of-employment/unfair-dismissal#field-content-1-heading, Accessed on 25th May 2018.
Michaell Dawson, 2017, Australia: Recent unfair dismissal cases: lessons and reminders for employers, < https://www.mondaq.com/australia/x/607858/Unfair+Wrongful+Dismissal/Recent+unfair+dismissal+cases+lessons+and+reminders+for+employers>, Accessed on 25th May 2018.
AWPTI, (2017), unfair dismissal flawed investigation, < https://awpti.com.au/unfair-dismissal-flawed-investigation/>, Accessed on 25th May 2018.
Patrick Stafford, (2013), What you can learn from unfair dismissal cases that get dismissed, < https://www.smartcompany.com.au/people-human-resources/managing/lessons-from-unsuccessful-fair-work-commission-unfair-dismissal-applications/>, Accessed on 25th May 2018.
Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores [2017] FWC 32
Welsby v Artis Group Pty Ltd [2016] FWC 2251.
Kaufman v Jones Lang LaSalle Pty Ltd T/A JLL (2017) FWC 2623.
Tasmanian Ports Corporation Pty Ltd v Gee [2017] FWCFB 1714.
West v Holcim (Australia) Pty Ltd [2017] FWC 2346.
Journals
Kim Southey, (2015), unfair dismissal for australian workers: the hundred-year journey, Asian Academy of Management Journal, Vol. 20, No. 1, 147–164.
Federal Government Media Release CCH 29 October 2003.
Brown, M. V., 1989, The Demise of Compensation as a Remedy for Unfair Dismissal in Western Australia: a casualty of the Robe River Dispute, 19 UWAL Rev. 29.
Statute
Fair work Act 2009
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