Employment Law: Dismissal Claim and Termination Justification

This article discusses the legal aspects of dismissal claim and termination justification in employment law. It covers workplace discrimination, unfair dismissal, constructive dismissal, and summary dismissal. The case of Isabel's dismissal claim and Barry's termination justification are analyzed. The article provides insights into the relevant laws and their application in these scenarios.

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

1EMPLOYMENT LAW
Table of Contents
Issue 1.........................................................................................................................................2
Law.............................................................................................................................................2
Application.................................................................................................................................4
Conclusion..................................................................................................................................4
Issue 2.........................................................................................................................................5
Law.............................................................................................................................................5
Application.................................................................................................................................6
Conclusion..................................................................................................................................7
References..................................................................................................................................8

2EMPLOYMENT LAW
Issue 1
Would Isabel be successful in bringing a claim of dismissal against her employer?
Law
Workplace discrimination means giving favour to a person or creating challenges for
a person for certain reasons. Therefore, to avoid workplace discrimination, anti
discriminatory laws has been adopted in order to protect the common people in their
employment who are often put under the radar of workplace discrimination
(Parliament.vic.gov.au, 2019). The elements of workplace discrimination that needs to be
established in order to win a claim against it are:
1) The person who has been discriminated must have been asked to abide by certain
requirement which he has failed;
2) It needs to be established that there is a mass or group of people who have
successfully abided by such requirement.
3) It should be established that such requirement is not reasonable as per the
circumstances of the person.
In the landmark case of Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR
165, it could be seen that and unreasonable policy of retrenchment affected the women
workers of a workplace where the company had recently started to employee women after a
history of only employing men (Parliament.vic.gov.au, 2019).
The Fair Work Commission lays down that the employer shall have the right of
dismissing an employee in case search employee is found to have and outside conduct which
is obscene or offensive and thereby demeaning for the workplace as held in the case of Rose
v Telstra Corporation Limited [1998] AIRC 1592. The court had held in this case that the

3EMPLOYMENT LAW
following conditions need to be fulfilled in order to dismiss an employee pertaining to his off
duty conduct:
1) The workplace relationship between the employer and the employee has been
damaged by way of the of duty conduct of the employee
2) The employers interest have been damaged or hurt by way of the off duty conduct
of the employee;
3) It has become incompatible to carry out the employment duties by the employee
due to his off duty conduct.
It is the employer who is responsible for dismissing an employee as held by the Fair
Work Act 2009 (Cth). Whenever an employee is wrongfully dismissed, he is given a chance
to claim damages or compensation from such employer who gives out the order of wrongful
dismissal. While, when an employee is dismissed following the legislative rights and duties
of such employee, without fair reasons like misconduct or performance issue, then in that
case such dismissal is termed as an unfair dismissal (Unfair dismissals benchbook, 2019). A
dismissal effected without following the rules and procedures of dismissal is also included
under unfair dismissal which is heard by the Australian Employment Tribunal (Fair Work
Ombudsman, 2019). Constructive dismissal on the other hand takes place when a resignation
is placed by an employee calling out on the gross violation of the employer’s duty as well as
misconduct effected by the employer including ill-behaviour and workplace discrimination.
In addition, this type of dismissal could be regarded as an extension of the employer's
constant push or persuasion to the employee to leave the workplace.
However it is important that a victim of wrongful, unfair and constructive dismissal
mast distinguish between the three and file a case of dismissal with an employment Tribunal
in order to be heard by the bench, for an incorrect filing of dismissal could get the case
dismissed by the court or Tribunal. A claim against Constructive dismissal ask the aggrieved

4EMPLOYMENT LAW
party to you strongly establish that he has faced a gross violation of duty as well as a breach
of contract on the part of his employer and in certain critical cases the employee is even
empowered to resign without serving a notice period (Fair Work Ombudsman, 2019).
Application
Isabel requested her employer to reduce her shifts timing and make the working hour
from 38 to 22 hours per week for she was always interested to pursue her true passion aerial
trapeze. On her employer’s denial to reduce the working hour, Isabel resign from her job get
served the notice period for pursuing full-time aerial trapeze. Isabel did not mention of any
form of workplace misconduct or discrimination in her resignation which could hold the
employer liable for unfair or wrongful dismissal.
No sign of unfair dismissal could be found in this scenario as accused by Isabel as she
had to resign from the job for pursuing full time aerial trapeze. It could be assume that she
was not happy leaving the job as she had demanded for A reduction of the working hour
which was not granted by the employer and therefore she accused the employer of this
missing her unfairly, which is completely untrue. As per the rules of dismissal, the employer
must has dismissed Isabel in order to be alleged for unfair dismissal; however in this case it
was is Isabel who resigned from the job.
Conclusion
Isabel would not be successful in bringing a claim of dismissal against her employer.

5EMPLOYMENT LAW
Issue 2
Would Barry be able to justify the terminating Isabel summarily?
Law
The Fair Work Commission lays down that the employer shall have the right of dismissing an
employee in case search employee is found to have and outside conduct which is obscene or
offensive and thereby demeaning for the workplace as held in the case of Rose v Telstra
Corporation Limited [1998] AIRC 1592. The court had held in this case that the following
conditions need to be fulfilled in order to dismiss an employee pertaining to his off duty
conduct:
1) the workplace relationship between the employer and the employee has been damaged
by way of the of duty conduct of the employee
2) The employers interest have been damaged or hurt by way of the off duty conduct of
the employee;
3) It has become incompatible to carry out the employment duties by the employee due
to his off duty conduct.
Constructive dismissal on the other hand takes place when a resignation is placed by an
employee calling out on the gross violation of the employer’s duty as well as misconduct
effected by the employer including ill-behaviour and workplace discrimination. In addition,
this type of dismissal could be regarded as an extension of the employer's constant push or
persuasion to the employee to leave the workplace (Unfair dismissals benchbook, 2019). A
claim against Constructive dismissal ask the aggrieved party to you strongly establish that he
has faced a gross violation of duty as well as a breach of contract on the part of his employer

6EMPLOYMENT LAW
and in certain critical cases the employee is even empowered to resign without serving a
notice period.
On the other hand, in case of summary dismissal is the sudden dismissal of a employee by
an employer on the grounds of workplace policy violation or misconduct, like application of
violence or carrying out regressive acts in the workplace (Unfair dismissals benchbook,
2019). In such cases the court on the Tribunal look into the matter and try to find out whether
there was enough grounds to dismiss the employee instantly. The case of Ismet Hussein v
Westpac Banking Corp [1995] IRCA 132 is an example where the employer was allowed to
dismiss an employee on the grounds of misconduct that was carried out by such employee
outside the employment and the employer have justified his decision by stating the fact that
such behaviour of the employee was damaging the reputation of the company. Even though
when an employer gets to know about the misconduct of an employee on a later date, the
employer is liable to take action for such past misconduct of the employee as held in Concut
Pty Ltd v Worrell (2000) 176 ALR 693.
Application
Barry, Isobel’s supervisor is zoomed to have no knowledge of Isobel’s second
employment as a trapeze artist. Therefore when he came to know about the fact that Isabel
performs aerial trapeze at a nightclub after her working hours he was amused and therefore
approached her to ask about it where she completely lied about it. Such an insignificant lie
for suppression of fact made Barry to reconsider her position in the organisation and
subsequently issuing a summary dismissal for instant dismissal to her. It is to be noted that an
action of not disclosing about her second employment to her supervisor makes her violator of
workplace policy which directs every employee to disclose any other source of income to
one's employer. For this ground Isabel could be held liable for violation of workplace policy

7EMPLOYMENT LAW
as well as misconduct and for which she could be dismissed from the job. However it must be
e also acknowledge to that summary or instant dismissal is unjustified and unreasonable in
this situation for the gravity of the situation demands that is a bell should be given notice
period which she could serve instead of being dismissed instantly. It is true that she disclosed
about her seconds employment get such activity in her off duty hours did not bring any harm
to the first job.
Here, the essentials of summary dismissal do not match with the reasons behind
Isobel’s dismissal. Lying about one's personal space including a second employment does not
constitute to be a sufficient reason for being dismissed summarily. Therefore it could be
stated that certain other approach could have been taken for holding Isabel guilty, instead of
issuing a summary dismissal against her.
Conclusion
Barry would not be able to justify terminating Isabel summarily.

8EMPLOYMENT LAW
References
Australian iron and steel Pty Ltd v Banovic (1989) 168 CLR 165
Concut Pty Ltd v Worrell (2000) 176 ALR 693
Ismet Hussein v Westpac Banking Corporation - [1995] IRCA 132
Parliament.vic.gov.au. (2019). Discrimination in the Law - Chapter Two - What is
Discrimination?. Retrieved from
https://www.parliament.vic.gov.au/archive/sarc/Equal_Opportunity/Discussion/
chaptertwo.htm
Fair Work Ombudsman. (2019). Welcome to the Fair Work Ombudsman website. Retrieved
from https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-
sheets/minimum-workplace-entitlements/ending-employment
Rose v Telstra Corporation Limited [1998] AIRC 1592
Unfair dismissals benchbook. (2019). Terminated at the employer's initiative. Retrieved from
https://www.fwc.gov.au/unfair-dismissals-benchbook/what-is-dismissal/employers-
initiative