Irac on Unfair Dismissal Legal Assignment 2022

Running head: LEGAL ASSIGNMENT
IRAC ON UNFAIR DISMISSAL
Name of the Student
Name of the University
Authors Note

1LEGAL ASSIGNMENT
1.
The wage-work bargain is the principle which is developed for workers so that they can
enter into a negotiated relationship with the company. The workers and the corporation negotiate
with each other for the salaries and contributions made by workers in the corporation according
to these theories. The relationship is focused on the wages provided to the workers working for
the company by the employer (Greenwood, 2016).
There are some situations under which, where the employees do not get any remuneration
for performing their work. This types of payment are called Performance-related pay or pay for
performance. It is a pay structure depends on how well the employees perform, depending on the
person’s positions or team on their pay band. This standard-based method is used by many
employers to assess workers and to determine salaries. For instance, salespeople or employees of
the production line may be compensated in this manner or by commission because based on their
performance the sales or production got increased.
The Federal Court agency hires staff in different places around Australia for a variety of
tasks, such as:
 Legal assistance and court services such as customer relations officers, court managers,
consultants and executive assistants;
 Legal staff, including registrars, trial registrars and administrators of legal cases;
 Dispute services for children, including family counsellors; and
 The role of Native Titles Tribunal which includes legal assistance, alternative dispute
resolution, geospatial facilities, support for future activities (Wales, 2015).

2LEGAL ASSIGNMENT
2.
The termination of an employee’s employment by an employer is called a dismissal.
Before firing an employee, the employers must ensure that they have a justification which is just
and reasonable. The five grounds for the dismissal, which may be appropriate are skill or
qualifications, behaviour, unemployment; where continued work would violate the law, and
other significant cause.
There are several occasions where an employee is fired from his job unethically and
unlawfully. The six grounds for the unfair dismissal are discrimination, activities of
whistleblowing, retaliation, breach of public policy, family or medical leave, and violation of
good faith and fair dealing. In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated
Miscellaneous Workers’ Union of Australia [1987] HCA 63 case the court ruled
that termination on the ground of discrimination is considered to be unfair dismissal.
Fair Work Ombudsman is responsible for fostering harmonious, efficient and
collaborative relationships in the workplace. It assists employers and workers in recognizing
their rights and duties under Australian labour laws. Fair Work Ombudsman cannot implement
the Fair Work Act of 2009 because it is created by the provisions of the said Act (Farbenblum &
Berg, 2017).
3.
A contractual arrangement between employers, workers and bargaining members is
agreed to establish equal working salaries and working conditions. The process of making
enterprise bargaining is:
 Communicate with the workers before appropriately starting the bargaining process;

3LEGAL ASSIGNMENT
 Notifying the workers within 14days about the beginning of bargaining;
 Draft the terms;
 Vote on the agreement;
 Lodge the agreement; and
 Approval of the agreement.
A favourable employee vote is not enough to make an enterprise agreement effective
because as per the Fair Work Act of 2009 at least 51% votes out of the total worker's votes can
make the bargaining process effective (O'Faircheallaigh, 2018).
Employees are those individuals who receive payments from their employers for
providing service whereas voluntary workers do not get paid by their employers (Mellor, 2018).
Therefore, they are not considered to be employees. In Majrowski vs. Guy's and St. Thomas'
NHS Trust [2006] the court held that the organization also held vicariously responsible for the
wrongful and abusive conduct of the voluntary worker.
4a.
Issue
In this paper, the issue to be discussed is whether the dismissal of Sarah was unfair.
Rule
Generally, an unfair dismissal which is also considered to be as a wrongful termination
occurs when a worker is terminated or fired unfairly from his or her workplace (Southey, 2015).

4LEGAL ASSIGNMENT
Based on the present Australian law, the Fair Work Commission operating according to
the provisions of section 385 of the Fair Work Act of 2009 decides that an unfair dismissal
occurs:
 When an individual has been fired [u/s 386];
 When the termination was extreme, unjust or excessive [u/s 387];
 When the termination did not comply with the Small Business Fair Dismissal Code [u/s
388]; and
 When the case did not involve true termination [u/s 389] (Pittard, 2015).
In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’
Union of Australia [1987] HCA 63 case the court held that unfair termination may occur with or
without notice and termination on the ground of discrimination is considered to be unfair
dismissal.
Application
In this given scenario, Sarah was dismissed by her employer for taking old flowers with
her every Friday to give her mother. Her employer did not provide any prior notice of
termination.
By applying the provisions of section 385 to 389 of the Fair Work Act of 2009 the
incident itself was a case of unfair dismissal.
By applying the rule of Re Ranger Uranium Mines Pty Ltd; ex parte Federated
Miscellaneous Workers’ Union of Australia [1987] HCA case it can be said that Sarah was
dismissed unfairly.

5LEGAL ASSIGNMENT
Conclusion
Therefore, from the above discussion, it can be said that Sarah was unfairly dismissed by
her employer.
As it is a case of unfair dismissal, therefore, she is eligible to get compensation of from
her employer which shall be determined by the Commonwealth Conciliation and Arbitration
Commission as stated in Re Federated Storemen & Packers Union of Australia; Ex parte
Wooldumpers (Vic) Ltd [1989] HCA 10 case.
4b.
Issue
In this paper, the issue to be discussed is whether the sympathetic actions taken by Sarah’s
friend violates the common law.
Rule
In the case of Australia, trade or labour unions to resolve an industrial dispute cannot take
the help of secondary boycott or sympathetic strike under the provisions of the Competition and
Consumer Act, 2010. It occurs when one union supports a third party, while the union does not
disagree with the employer (McCrystal, 2019).
In Buffalo Forge Co. vs. United Steelworkers [1975] 517 F.2d 1207 case the court held
that a strike of solidarity cannot be enjoined by an alleged breach of non-strike clause until a
judgment of the validity of the strike by an arbitrator has been made.

6LEGAL ASSIGNMENT
Application
In this given scenario, Sarah’s friend who is also a member of a union after listening to
the entire story from Sarah her friend with other members decided to boycott their work.
The actions taken by Sarah’s friend is strictly prohibited under the provisions of the
Competition and Consumer Act, 2010.
By applying the rule of Buffalo Forge Co. vs. United Steelworkers [1975] 517 F.2d
1207 case it can be said that the strike violates the common law provisions.
Conclusion
Therefore, from the above discussion, it can be said that the sympathetic actions taken by
Sarah’s friends violate the common law provisions.

7LEGAL ASSIGNMENT
Reference
Farbenblum, B., & Berg, L. (2017). Migrant workers’ access to remedy for exploitation in
Australia: the role of the national Fair Work Ombudsman. Australian Journal of Human
Rights, 23(3), 310-331.
Greenwood, D. T. (2016). Institutionalist theories of the wage bargain: beyond demand and
supply. Journal of Economic Issues, 50(2), 406-414.
McCrystal, S. (2019). Why is it so hard to take lawful strike action in Australia?. Journal of
Industrial Relations, 61(1), 129-144.
Mellor, H. W. (2018). The role of voluntary organisations in social welfare (Vol. 14). Routledge.
O'Faircheallaigh, C. (2018). Negotiations between mining companies and Aboriginal
communities: process and structure. Canberra, ACT: Centre for Aboriginal Economic
Policy Research (CAEPR), The Australian National University.
Pittard, M. J. (2015). Protection from unfair dismissal: fairness and the Fair Work Act.
In Employment Rights Now: Reflections on the Australian Charter of Employment
Rights (pp. 83-95). Hardie Grant Publishing.
Southey, K. (2015). Unfair dismissal for Australian workers: the hundred-year journey. Asian
Academy of Management Journal, 20(1), 147.
Wales, N. S. (2015). Australia. Federal Court (Doctoral dissertation, Ministry of Health 10
Canada).