Unfair Dismissal and Australian Employment Laws

Running head: HUMAN RESOURCE MANAGEMENT LAW
Human Resource Management Law
Name of the Student
Name of the University
Author Note

1HUMAN RESOURCE MANAGEMENT LAW
Introduction
Unfair dismissal implies the termination of employment of an employee effected without
any just or proper reason or it has been effected in a way or for a reason, which the laws of
employment does not prevailing in a country does not support. An employer is not justified
under law to dismiss an employee without furnishing a proper reason for the same. Australia
has stringent laws to protect their employees from unfair dismissal1. Moreover, in Australia,
an employment is initiated with a contract between an employee and the employer. An unfair
dismissal will have the effect of breaching the terms of that contract. However, there are
several debates and controversies that has been prevailing in Australia regarding the
effectiveness of the legal protection are available to the employees under the employment
laws in Australia.
This paper will discuss unfair dismissal in the light of the Australian employment laws. It
will present an analysis of the Australian laws regarding the unfair dismissal. It will strive to
critically discuss the effectiveness of these laws to give protection to the employees. It will
also strive to point out the inadequacies that the laws for unfair dismissal has. It will also
strive to infer a conclusion from the discussion throughout the paper.
Discussion
In Australia, the employees are protected against unfair dismissal under the employment
laws prevalent. This covers a couple of ways to protect the employee form an unfair
dismissal. An employer is not empowered to dismiss an employee for a reason, which is
prohibited under the law. This includes the membership of the employee in the union.
However, under the Australian employment law regime, the employee does not have the right
1 Howe, Joanna. Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK,
Australia and the USA. Routledge, 2016.

2HUMAN RESOURCE MANAGEMENT LAW
to challenge such a dismissal on his own. He is required to challenge the fairness of such a
dismissal through the union2.
Under section 385 of the Fair Work Act 2009 (Cth)3, an unfair dismissal is said to have
occurred when an employee has been dismissed, the reason based on which the dismissal has
been effected was not just, unreasonable and unjust or it was not in compliance with the
Small Business Fair Dismissal Code. A dismissal effected for the reason of a genuine
redundancy is also excluded from the purview of unfair dismissal. The Fair Work
Commission has the power and discretion to decide whether a dismissal can be construed to
be an unfair one. The employee who has been dismissed in an unfair manner, has a right to
remedy against such a dismissal. The employee can avail, in case of an unfair dismissal,
either a compensation or a reinstatement. In case of an unfair dismissal, the first thing that the
commission considers in providing a remedy is whether the reinstatement of the employee in
the employment is appropriate. The remedy of compensation is only available to the
employee if the reinstatement would not be appropriate in the given circumstances. The
commission will initially try to reinstate the employee and if not possible and appropriate
provide for a compensation to the employee4.
Under the Australian Common Law, damages are only available to an employee being
unfairly dismissed if the employee has incurred a loss in his income, which would not have
occurred if the breach resulting in the unfair dismissal has not been effected. The main aim of
such a damage is to mitigate the losses incurred by the employee by virtue of such an unfair
dismissal. However, the connection of the dismissal with the loss caused to the employee
needs to be established for claiming damages. If the connection between the two is too
2 Barry, Michael. "Employer and employer association matters in Australia in 2015." Journal of Industrial
Relations 58, no. 3 (2016): 340-355.
3 The Fair Work Act 2009 (Cth) s. 385
4 Southey, Kim. "Unfair dismissal for Australian workers: the hundred-year journey." Asian Academy of
Management Journal 20, no. 1 (2015): 147.