Unfair Dismissal Law in Australia

This assignment delves into the complexities of unfair dismissal laws in Australia. It outlines the criteria employees must meet to prove harsh termination and their right to seek remedies through the Fair Work Commission. The document explores available remedies like reinstatement and compensation, emphasizing that genuine redundancy doesn't constitute unfair dismissal. Numerous case studies and legal precedents are referenced to illustrate key principles and applications of the law.

Running head: EMPLOYMENT LAW
Employment Law
Name of the Student
Name of the University
Author Note

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EMPLOYMENT LAW
Answer I
The rights, responsibilities and duties of the employers and employees are set out by the
employment contract. All contractual terms in relation to an employment contract has to be
carefully analyzed before the contract is entered into by the parties to it. The legal rights of the
employees include right to minimum wages, right to leave and right to healthy and fair working
conditions. The rights and liabilities of employer are determined through analyzing the terms of
an employment contract. The purpose of this part of the paper is to identify the types of terms in
an employment contract and analyze how the terms are given meaning by the courts and what are
their effects on the rights and obligation of the employees and employers.
The terms of an employment contract can be divided into expressed terms, incorporated
or implied terms. Express terms of those terms which have been expressly incorporated into the
employment contract. These are the terms which have been agreed upon by the employer and
employee in writing or orally. These are those elements of the employment contract which have
been mentioned specifically in the contract. Some of the examples of an Express terms in an
employment contract may include redundancy pay, sick pay, hours of work including overtime
hours, how much will be the wages, what is the minimum amount of notice period which has to
be served in order to end the contract and leave entitlements. Express terms in a contract are not
only found in the employment contract itself but also in job adverts, employee or staff manual,
any letter received from the employer or any document signed by the employee.
On the other hand implied terms in an employment contract are those terms which are not
written or discussed orally however these terms are present and can be applicable to almost all
employment contracts. For instance the employee not stealing from the employer or not leaking

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out the confidential information of the employee is an implied term of the employment contract.
Indeed and it is also the duty of the employee to provide the Employees with the safe working
condition and not direct the employees to do anything which is not legally allowed such as
driving a vehicle which is not insured. Another implied term in the contract of employment is
that of a fiduciary relationship and the idea of mutual confidence and trust between the employee
and the employer. Implied terms can be incorporated into the employment contract even through
practices and Customs in the industry. This means that the terms which have never been
expressly agreed by the parties to the contract but overtime such terms have become a part of the
contract. This may include terms like letting the employee leave early on Friday or providing
them with a Christmas Bonus. In order to be incorporated into the contract to practice and
Customs and implied term has to be long standing, automatically received, uninterrupted and
expected or well known.
Terms which have been incorporated into the employment contract through collective
agreements and work rules are known as incorporated terms. Thus Incorporated terms may be
the rules and regulations which have been provided in employee policy or the code of conduct of
the employer.
On occasions expressed or incorporated term may look quite simple however they
provide Complex issue of construction. Construction is the process through which properly
meaning and scope is provided to the terms of a contract by the courts. An interesting example of
interpretation difficulties with respect to express terms have been provided by the The Sarfaty
case (1992) 28 NSWLR 68. In order to ascertain whether an incorporated terms or a Express
term form a part of the contract, various circumstances have to be considered such as the
situation in which the document have been brought to the attention of the employees and other

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provisions provided in the policy and procedures of the employer. The court analysis whether the
language of such terms are merely aspirational or descriptive or actually promissory in nature to
give rise to a contractual obligation. The court also analyzes whether the terms can be said to
have an objective intention of creating a legal relationship between the parties. The issue have
been discussed by various cases including the Romero case [2014] FCAFC 177; 247 IR 315 as
well as the case of Westpac Banking Corp’n v Wittenberg [2016] FCAFC 33 (esp by Buchanan
J at [69] to [115]). If it is found that a contractual term has been incorporated they are provided
the status of an ordinary Express term of the contract by the court.
Express terms can be incorporated into the contract through reference of other documents
as being the part of the original contract of employment. For instance these documents may deal
with code of conduct, disciplinary procedure, bonus schemes or leave entitlements. Even if such
reference is not made these documents they are usually interpreted by courts as the part of the
original contract of employment. In case where procedures and policy of the employers are
considered as a part of the employment contract such policy may allow the employee to modify
or alter the terms of the contract periodically. Primary focus is placed by the courts on the precise
language used and the circumstances in which the original employment contract has been entered
upon in order to determine the rights and duties of employers and employees to employment
contract. Express terms can be understood differently by different parties to the contract and
therefore poses a problem for the parties as well as the courts for interpreting them. However
Express terms in a contract are most of the times interpreted by the court in and objective sense
and not subjectively. This means that meaning is provided to the express terms based on what a
reasonable person things about the terms to be and not what the parties to the contract think
about the term as discussed in the Sarfaty case.

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Broadly speaking implied terms are of mainly two types firstly implied by law and
secondly implied by fact. As discussed above contrary to the express or incorporated terms,
whether implied terms are present in a contract or not is determined by the courts. One of the
primary cases which discussed about an implied term in the contract is the case of dash dash
dash. In this case it was ruled by the court that a term would be an implied term if it is obvious
and necessary for the continuation of contract but not if it is really fair and just.
There is a significant difference between terms implied by law and terms implied in fact.
Individualized terms which are specific to the context and are implied from specific provisions
and terms of the employment and are considered against the contractual settings are known as
terms implied in fact. These terms are only incorporated by the judges when they find that it is
necessary to incorporate search terms to provide business appreciation to the contract. These
terms are usually incorporated through the application of the objective test which means a
reasonable person in the position of the parties to the contract would have assume such terms to
be present in the contract even if they are not specifically mentioned as it was done in the case
of Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
Standardise terms which are considered by the courts as necessary terms of all employment
contracts are known as terms implied by law as provided in the case of UWA v Gray (2009)
FCR 346. The test which is used in order to determine the presence of a term implied by law is
wider than the objective test used to determine the presence of a term implied by fact. It is upon
the will of the party to add or exclude Anita in a contract however if such things have not been
done terms which have been employed by law would be said to be present in the contract and
bind the parties irrespective of their objective or subjective intention. In the case of
Malik/Mahmud [1998] AC 20 at 45 it was provided by the court that the terms which are unique

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to a specific contract in context and depend upon the form of the contract and the express terms
along with the surrounding circumstances are terms implied in fact.
The common thing about both kind of implied turns out that they cannot be applicable
into the contract if they are contradictory to anything which has been expressly incorporated into
the contract.
Therefore before entering into an employment contract the employees and the employers
have to gain knowledge about the application of different terms in the contract of employment as
the terms specifically set out what are the legal rights and obligations of the employee and the
employer.

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Answer III
According to the Fair work Act 2009, part 3 when an employee of an organization is
harshly and dismissed from his job on unreasonable grounds, it can be stated that the employee
has been dismissed unfairly. The employee who has been terminated on unfair grounds can seek
remedies in the court of Fair work Commission. However it is to be noted that according to
section 386 of the act, for an employee to seek remedy for unfair dismissal, it must be proved
that he had been terminated on the initiative of the employer. However, it can be mentioned that
a person who had been forced to resign because of the conduct of the employer will also
constitute dismissal.
Essentials of Unfair Dismissal
According to the aforementioned act (Legislation.gov.au, 2017), it can be stated that for
an employee to seek unfair dismissal he needs to have completed the minimum period of
employment. It is also to be mentioned that there must be an existing agreement between the
employer and the employee who wishes to seek remedy for unfair dismissal. The aforementioned
act states the definition of minimum time period of employment. If the employer cannot be
called a small business employer, it is essential for the employee to be employed under him six
months. However it is to be mentioned that the employee must be provided with a letter of
dismissal prior to the dismissal. In case of a small business employer, it is necessary for the
employee to be employed under him for a period of not less than one year before he can bring
charges of unfair dismissal on the employer. It is important to mention that the period of
employment with an employer is the period when the employee was providing constant service

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to the employer and was not on temporary employment. The time period of service of a casual
employee does not count and the same cannot be eligible to seek remedies for unfair dismissal.
However, there are exceptions to the abovementioned provisions. If a casual employee can prove
that he was working on a regular basis or if the employee can prove there was reasonable ground
for him to expect the continuation of service, he will be eligible for the seek remedies of unfair
dismissal.
However, section 387 of the aforementioned act governs the criteria to consider the harshness of
dismissal. It can be stated that an employee will not be considered to have been dismissed
harshly if it is to be proved that the employee was lacking the capacity required for the job or his
conduct was inappropriate for the same. It is also to be mentioned that the employee must be
notified of the same and given a warning and chance to rectify his actions before his dismissal. In
that case the employee cannot claim that the employer was harsh in dismissing him.
Remedies for unfair dismissal
Reinstatement – According to section 391 of the Fair Works Act 2009 it can be stated that the
Fair Works Commission may reinstate a person if it is proved that the person was unfairly
dismissed. Reinstatement of a person means to reappoint the person in the position in which he
was working before. The commission can also give the order to appoint the person in a position
which would be in no way be less favorable than the position he was working in prior to his
dismissal. It can be stated that an employee can only be employed in a post which is equivalent
to the position he was working in if the position in which he was employed is unavailable. It can
be stated that the Fair Works Commission can order under subsection(1) of section 391 of the
act to ensure the continuity of employment of the employee in the position he was employed
before or an equivalent position. The commission under the Subsection 1 can also order the

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employer to pay remuneration for the time period when the employee was unemployed. The
commission however takes into account the amount earned by the employee during the
unemployment from other work in deciding the compensation. It may also take into account the
remuneration likely to be earned by the employee during his unemployment, which can be
considered reasonable.
Compensation – According to section 392 of the Fair Works Act 2009 it can be stated that the
FWC may grant an order of compensation to be provided to the employee by the employer, if it
is proved that the employee had dismissed unfairly. Compensation can be considered a
remuneration to be paid to the employee by the employer for being able to reinstate the same in
the employee’s former position or equivalent position. According to subsection 2 of section 392
of the Fair works Act 2009 it can be stated that the there are certain criteria to be followed by the
Fair Works Commission for judging the compensation to be granted to the employee. They are:
 The time period of employment of the employee with the employer,
 The remuneration to have been received by the employee had not been dismissed.
 The effort given by the employee to mitigate the loss suffered by the same during the
term of un employment
 The remuneration earned by the employee from other employment or work during the
period of dismissal
 The amount of remuneration to have reasonably been earned by the employee during the
time period of the award of the compensation and the actual compensation received.
However according to subsection 3 of the aforementioned section of the aforementioned act
the it can be stated that the Fair works commission takes into account the whether the employee

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in consideration had been charged of misconduct prior to the dismissal. In case the employee was
charged of misconduct, the Fair works commission reduces the compensation it would have
ordered if the employee had not been charged of misconduct. It is to be mentioned that the FWC
does not take into consideration the mental stress, humiliation, disregard faced by the employee
prior to its dismissal. It can be stated that the remuneration to be paid to the employee should be
total of what the employee was entitled to which is the remuneration of twenty-six weeks, prior
to the dismissal of the employee. If the employee was on leave without or partial pay the
remuneration to be received by the employee will be in accordance with regulations of the
employer. Subsection 391(3) and 392(2) of the aforementioned acts states that the FWC may
instruct the employer to pay the compensation Installments. However it is to be mentioned that
the employer must pay the compensation to the employee within the specified time as stated by
the Fair Works Commission.
Unfair Dismissal Remedy Procedure:
It can be stated that the employee, who has been dismissed on unfair grounds and wishes to
seek remedy must apply to the Fair Work Commission for granting a remedy to the employee.
The application made to the Fair Work Commission must be made within a time period of
twenty days of the dismissal. It is to be noted that the Fair Work Commission may grant an
extension of the application period if:
 The reason of delay is mentioned by the employee
 The employee had become aware later of the dismissal of the same
 The application of the parties has merit.

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An application fee has to be paid by the applicant under Division 5 of the aforementioned act to
apply to the Fair Work Commission for seeking remedy for unfair dismissal.
Redundancy: An exception to Unfair Dismissal
According to section 389 of the aforementioned act it can be stated the dismissal of an
employee due to genuine redundancy will not be considered unfair dismissal. Genuine
redundancy can be defined as a situation when the employer of an employee no longer requires
the services of the employee due to a change in the nature of work. It can be stated when an
employee is dismissed due the change in the operations of the business, his dismissal cannot be
called unfair. However, it is to be stated that an employee’s dismissal cannot be justified by
redundancy if the employee had a scope of redeployment in other sector of the enterprise of the
employer or in the enterprise of an associate of the employer.
Thus to conclude, it can be stated that there are several criteria which are to be taken into
consideration by the Fair Work Commission in identifying whether an employee was dismissed
unfairly. It is important to state that there are several criteria for the employees to prove that they
had been terminated harshly. However, the employees if terminated on unfair grounds have the
right to seek remedies for the same. The aggrieved parties may apply to the Fair work
Commission to seek remedies for Unfair Dismissal by following the procedures as stated by the
Fair Work Act 2009. The remedies to be granted to the employees include Reinstatement and
compensation. It is important to mention that if the employees had been dismissed due genuine
redundancy they can claim that they had been dismissed on unfair grounds.

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Reference List:
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Davidov, G. and Eshet, E., 2015. Intermediate Approaches to Unfair Dismissal
Protection. Industrial Law Journal, 44(2), pp.167-193.
Fair Work Act 2009 (Cth)
Howe, J., 2013. Poles Apart? The Contestation between the Ideas of No Fault Dismissal and
Unfair Dismissal for Protecting Job Security. Industrial Law Journal, 42(2), pp.122-151.
James, N. and Ombudsman, F.W., 2015. Commonwealth of Australia.
Johnson case [2003] 1 AC 578 at 539
Legislation.gov.au.(2017). Fair Work Act 2009. [online] Available at:
https://www.legislation.gov.au/Details/C2013C00033 [Accessed 22 Nov. 2017].
Malik/Mahmud [1998] AC 20 at 45
Romero case [2014] FCAFC 177; 247 IR 315
Sanders, A., 2014. The law of unfair dismissal and behaviour outside work. Legal Studies, 34(2),
pp.328-352.
Southey, K., 2015. UNFAIR DISMISSAL FOR AUSTRALIAN WORKERS: THE HUNDRED-
YEAR JOURNEY. Asian Academy of Management Journal, 20(1).
Spring v Guardian Assurance plc [1995] 2 AC 296 at 335

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Tasmanian Ports Corporation Pty Ltd v Gee [2017] FWCFB 1714
The Sarfaty case (1992) 28 NSWLR 68
UWA v Gray (2009) FCR 346
Van Gramberg, B.E.R.N.A.D.I.N.E., Bamber, G.J., Teicher, J. and Cooper, B.R.I.A.N., 2014.
Conflict management in Australia. The Oxford handbook of conflict management in
organizations, pp.425-448.
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
West v Holcim (Australia) Pty Ltd [2017] FWC 2346
Westpac Banking Corp’n v Wittenberg [2016] FCAFC 33