Australian Employment Law: A Case Study on Unfair Suspension and Contract Breaches

This report discusses a case study on unfair suspension and contract breaches in Australian employment law, highlighting the National Employment Standards, Modern Awards, and common law principles. It also examines whether the employee breached any obligations and the potential consequences for her.

Australian
Employment Law

Table of Contents
INTRODUCTION...........................................................................................................................4
MAIN BODY...................................................................................................................................4
CONCLUSION................................................................................................................................9
REFERENCES:.............................................................................................................................10
Books and Journals...................................................................................................................10

INTRODUCTION
The Australian employment law aligns towards the workforce of the business with
accordance to the “National Employment Standards” (NES) scheme which came into force on
January 2010 and there were many important provisions listed in this scheme such as flexible
working arrangements, leave entitlements, termination and redundancy pay. In additional to
these set standards there are “Modern Awards” which are an important part of the framework as
they are an instrument which applies in an industry which includes the minimum pay terms and
conditions for the employees. In order to get engage in any private company in Australia, it is not
mandatory for there to be an official agreement in writing because parties are free to negotiate
the terms and conditions of the contract. All the employee's who are covered under NES or are
are subjected to the modern awards are usually safe from workplace exploitation. In this report a
case will be the centre of discussion wherein an employee name Emma got suspended by her
manager due to some reasons or norms and this report will highlight the unfairness of this issue
with the help of the NES framework, Australian employee rights and the modern awards along
with the possibility of contract breaches and their consequences.
MAIN BODY
Are there any issues with Emma’s contract and her suspension in terms of the NES and
award compliance along with relevant common law principles?
There is an enterprise named as “Aussie Turf Supplies” in Australia wherein an employee
named Emma got an employment letter related to working for the post of Admin Officer and the
letter listed all the terms and conditions under which the signing was done by the employee
voluntarily. According to the contract which was made and signed, there was no potential
problem in signing from both the company and employee side.
But an issue was soon found at work as there were multiple instances of Emma being
subjected to bad behaviour and bullying which was coming from her senior manager in the
company an after tolerating it for a while, Emma got frustrated and took to social media to rant
against the culture at the company and called it toxic and also labelled the manager harshly,
calling him a “psychotic bitch”. The result of this action resulted in Emma getting hit by the
disciplinary committee and was suspended without pay the next morning.

The act of the employee was not tolerable but it also does not mean that what she did was
a big mistake as she did suffer in the workplace and her mistreatment shows that there is no fair
environment in ATS as most of the time the office manager bullied her and it means that no
importance was given about this bad treatment which was being instigated of the manager. The
manager also broke many laws of the company but in the end, only Emma got fired which is
unfair treatment on part of the company. According to the common law described by NES and
especially on the basis of award compliance, the suspension was not proper and valid. To support
the employee in this case few provisions of NES and common law's have been discussed below.
National Employment Standards- All the employee's in the Australian workplace are
covered under this standard irrespective of their agreement and status of contract. Basically the
NES provides a detailed set of 11 entitlements to all the employees who are working in the
workplace in Australia and it includes key elements such as hours of work, flexible working
arrangements, leave etc. In this case of Emma and ATS, there is no such breach of any
entitlements given in NES and an unpaid suspension on flimsy grounds is not tolerated.
Modern Awards- They are documents in which the minimum terms and conditions of
employment is given for the employee's. Modern awards came into force on 1st January 2010 but
it would not apply to the managers or the higher income employee's. The modern awards also
wouldn't apply when the business is covered by a registered agreement or if the base pay which
has decided the agreement is lower then the modern award then in that case, the pay of modern
award will apply. In the case of the employee, wherein she got bullied by the office manager, and
after the investigation she got suspended without pay, no parts of the modern awards were
breached1.
Common law's principles - There are various laws which can be successfully applied to
this case, some acts will protect the employee and some will prove that the activity of the
employee towards the office manager is not according to the guideline of laws and rules of the
ATS. Some common laws principles which support the employee's have been listed herein.
Fair work act- It gives the right to all the employee's to do their work fairly and allow
for no discrimination to be shown at the workplace. In the case of Emma, where she got bullied
1 Clibborn, Stephen, "It Takes A Village: Civil Society Regulation Of Employment
Standards For Temporary Migrant Workers In Australian Horticulture" [2019] University of
New South Wales Law Journal

is not covered under this act but her treatment was indeed unfair. Her senior manager violated
the principles and provisions which prevent bullying in the workplace multiple times but got
away scot free.
Australian Human Rights commission- This body protects the right of the employee's in
the workplace in terms of stopping bullying and in the case of the employee this commission will
have to step in and protect her.
In this particular case, ATS failed to give Emma proper chance to defend herself and it
also committed multiple policy violations as the company rules state that suspensions will be
made along with proper pay which Emma did not get. Emma was also not consulted and given a
chance to make the senior management hear her side of the story which is grounds for unfair
dismissal. These are some common laws which protect the rights of the employee and through
which it will be said that the procedure to suspend the employee is not properly followed.
However, the activity of an employee is also wrongful under the acts and also the
employee would get liable for the wrongful act according to the following acts and provisions.
Defamation act 2005- This act punishes employees in case they decide to defame the
company and post bad things about it which is true in the case of Emma as her words were harsh
and went viral within the company.
In the case between Bristow v Adams, in which the the respondent resigned from the
company through mail but, also the plaintiff sent the email to the Human resource manager in
which she criticised the character, the court held that the statement was defamatory. In the case
of the ATS also, the employee got suspended as the statement posed on social media was indeed
disrespectful in nature. There is no issue in the contract of an employee but, there is an issue in
terms of the NES, modern award and to the common laws principles.
Has Emma breached any of her express or implied obligations? If so, what are the
potential consequences for her?
In this case the employee has not breached any obligations which was mentioned in the
employment contract law but one particular condition was breached by the employee which is
the serious misconduct done by the employee, towards the ATS and also towards the office
manager, in which she posted the abusive statement for the manager and also said the
environment of the ATS toxic, which is sufficient to confirm her as being part of a defamation

attempt. It is clear that there no breach of any obligations except one, which is punishable under
law as well. According to the Defamatory act, 2005 in section 35, the person is bound to
compensate the amount to that person against whom the defamatory statement was passed, for
example in the case of ATS, Emma is bound to pay the amount of compensation to the office
manager as well as to the company because she passed the defamatory statement on both of
them2.
2 Windholz, Eric, "Victoria’S New Workplace Manslaughter Laws: It’S All In The Messaging" [2020] SSRN
Electronic Journal

CONCLUSION
It is to be concluded from the above report case that Emma who is an employee of the
ATS company in Australia got suspended primarily because of the defamatory statement passed
against the company itself and also against the office manager. In this case, a concluding
statement can be made that the procedure of suspending the employee is not proper because the
employee was facing constant workplace harassment by her manager and the second thing which
was not followed by the director of the company is not paying the amount to the employee
before suspending her, which was their own policy which is a clear violation. But, it doesn't
mean that the employee took the right action, the employee will also get punished or should
compensate the amount to the office manager for the defamatory statement and also to the
company. In the end, the employee action was not valid nor the procedure of the director of the
company was valid which makes the case in hand neutral at best.

REFERENCES:
Books and Journals
"Glass Ceiling At Workplace : An Analysis With Reference To Laws Of India" (2020) 7(7)
Babie, Paul, "Religious Freedom And Education In Australian Schools" (2021) 10(1) Laws
Ballard, Allison and Patricia Easteal, "The Secret Silent Spaces Of Workplace Violence: Focus
On Bullying (And Harassment)" (2018) 7(4) Laws
Clibborn, Stephen, "It Takes A Village: Civil Society Regulation Of Employment Standards For
Temporary Migrant Workers In Australian Horticulture" [2019] University of New
South Wales Law Journal
Golding, Gabrielle, "The Origins Of Terms Implied By Law Into English And Australian
Employment Contracts" (2020) 20(1) Oxford University Commonwealth Law Journal
Windholz, Eric, "Victoria’S New Workplace Manslaughter Laws: It’S All In The Messaging"
[2020] SSRN Electronic Journal