Type of Dismissal, Case Law, and Prospects of Successful Claim

This document provides advice to the Council on the type of dismissal Isobel will likely be claiming, related case law, and Isobel's prospects of bringing a successful claim. It discusses the legal issue, relevant law, application of the law to the facts, and concludes that Isobel cannot succeed in her claim of unfair dismissal. It also advises the Council on whether Barry is justified in summarily terminating Isobel's employment, explaining the requirements for instant dismissal, related case law, and common law principles that may apply in this situation.

[Type the document title]
[Type the document subtitle]
Hp50
Contents
1. You are the Human Resources Advisor for the Council. Advice the Council on the type of dismissal
Isobel will likely be claiming, related case law and Isobel’s prospects of bringing a successful claim?......2
The Legal Issue...........................................................................................................................................2
Relevant Law...............................................................................................................................................2
Application of the law to the facts...............................................................................................................3
Conclusion...................................................................................................................................................4
2. Advise the Council on whether Barry is justified in summarily terminating Isobel’s employment. In
your answer explain the requirements for instant dismissal, related case law and what common law
principles may apply in this situation..........................................................................................................4
The Legal Issue...........................................................................................................................................4
Relevant Law...............................................................................................................................................4

Application of the law to the facts...............................................................................................................5
Conclusion...................................................................................................................................................6
Reference:...................................................................................................................................................7

1. You are the Human Resources Advisor for the Council. Advice the
Council on the type of dismissal Isobel will likely be claiming, related
case law and Isobel’s prospects of bringing a successful claim?
The Legal Issue
On which type of dismissal Isobel will likely to claim?
Relevant Law
If the employee himself/herself resign from the employment because of unlawful dominate,
unfairly workload or other reason of the breach of employment, in that case, an employee has a
right to claim a remedy from Fair Works Commission for the unfair dismissal. Fair Works
Commission has jurisdiction to the dispute related to the Fair Works Act, 2009. If an employee
was dismissed from the employment without any valid reason involving their capability or
behaviour towards the working requirements of the business, the legislation provides the relief
under the Fair Works act. If an employee wants to get remedy under this act he/she has to prove
that employee’s dismissal from the employment was cruel, unfair, and irrational and there was
no genuine redundancy under section 385 of the Fair Works Act 2009 thereafter the employer
has to validate that there was a valid reason for the dismissal of the employee. At last, the
tribunal will decide the case after hearing the points of both parties that there was any legal
intention for the dismissal or not as per the provision of 387 of the FWA, 2009 (Teicher, 2013).
The Unfair Dismissal includes that employer terminates the employment of the employee with or
without notice or compelled the employee with the conduct that he/she terminate the agreement
of service. If the employee is dismissed or terminated from the employment, the worker has a
right to claim for the remedy of unfair dismissal under Division 4 of the Fair Works Act 2009.
For claiming the remedy of the unfair dismissal employer has to make an application to the Fair

Work Commission under section 394 within 21 days of the unfair dismissal. The decision of the
Fair Works Commission cannot be challenged as an appeal to the higher court unless it is related
to the public interest. In the case of Tom’s v Harbour City Ferries Pty limited [2015] FCAFC 35,
the court stated that at the time of the decision on the cases of unfair dismissal it is important that
the court precisely integrate the perception of significance but not integrate the sacredness of the
manager’s right to succeed the industry.
Working on the two jobs or under two employers is not illegal in West Australia but there are
some areas in which the employees are prohibited by the organization through the written
contract at the time of the employment like secondary job under the competitive organization,
affect the secondary job the actual purpose of the employee’s primary job and if any employee
want to join secondary job he/she needs consent from his employer. In the case of Mervin Jacob
v West Australian Newspapers Limited T/A the West Australian [2016] FWC 5382 the court
said that there was no unfair removal as the employee’s secondary employment was affecting the
performance of his primary job. Generally, an employee can work under different employers but
if the performance effect due to the two or multiple jobs can be ground for the termination of the
employee.
Application of the law to the facts
Isobel was working under the supervision of Berry and also she worked under aerial arts trapeze
in the night. Berry was aware of the second job of Isobel but there was no issue regarding it.
When Isobel requested her supervisor for the reduction of hours from 38 to 22, Berry refused
because the numbers of employees were on leave and in the Council number of projects was
needed to be complete. But Isobel tendered a written resignation to the Council as she wants to
give more time on her secondary job and then she claim the unfair dismissal which means the
supervisor compels her for the resignation which is constructive dismissal. In Johnson v Rajah
NO and others (JR33/15) [2017] ZALCJHB 25, Court stated that if the misconduct was actually
done by the employer, it cannot fall under constructive dismissal. In the case of Isobel, she was
under the contract with the East Sydney Council till 2021 and the working hours were 38, which
is in the limit of Employment Act. According to the perspective of the Isobel, she can claim that

her supervisor has the knowledge of her secondary job and she has not done any misconduct with
the supervisor she has just requested the reduction of hours because she wants to give more time
to her second job. As per the law, it is the duty or burden of the employee to prove that there was
any pressure was made by the employee or the dismissal was not unfair. Berry can prove that the
dismissal was not unfair as Isobel was in the contract for 38 hours work and she wants a
reduction of the time for the second job and there was no scope of reduction of time in the
council which is fair as the purpose of performance of the job, therefore, employer can terminate
the employee because it is a valid ground of the termination.
Conclusion
Isobel cannot succeed the claim of unfair dismissal as there was no illegal termination done by
the Berry. It is important that companies make sure that the facts of accusation about the conduct
of the employee systematically scrutinized before termination is anticipated by the employer
which is stated by the court in the case of Katsalis v Gympie and District RSL Memorial and
Citizens Club [2013] FWC 2830.
2. Advise the Council on whether Barry is justified in summarily
terminating Isobel’s employment. In your answer explain the
requirements for instant dismissal, related case law and what common
law principles may apply in this situation.
The Legal Issue
Whether the summarily termination of Isobel by Berry was justified.
Relevant Law

Right and duties conferred by the Fair Work Act or any other statute regarding the termination at
the workplace are statutory right, not a contractual right. If any person contravenes the statutory
right of another person the matter will be dealt with by the rule and regulation given under
relevant statute.
Summarily termination of any employee is the utmost unadorned method of the termination of
employment. Summarily dismissal specifies and registers very severe misconducts. This
dismissal or termination implemented without serving any notice. In some employment contract,
terms are stated that if at the time of employment any employee engaged in grave delinquency or
misconduct he/she will be dismissed by the proprietor without serving any notice. But for the
justification of summarily termination employers have to prove that the conduct of the employee
was grave enough to attack the relationship of employee and employer and terminates the mutual
faith and confidence between employee and employer. If an employer summarily terminates any
employee without any reasonable explanation, the employer will pay a high price for breaching
the implied terms of the faith and assurance. Mutual faith and self-assurance is the duty of all
employee and employer binding under the employment contract. Mutual faith and self-assurance
impose a reciprocal obligation on both parties of the employment contract that no party will
terminate the association of faith and self-assurance without any reasonable and proper cause.
Application of the law to the facts
In the Case of Isobel and Berry, Isobel had been working two jobs in a day and her employer
Berry was not aware of Isobel’s secondary job. And when it comes into the knowledge of berry
that Isobel was doing a secondary job in the club, he asked Isobel regarding the secondary job
indirectly she did not accept about her secondary job. On this reason, Berry fires her on the spot,
which is a summary dismissal in which the employer did not provide notice of dismissal to the
employee. Termination or dismissal on the ground of a second job in addition to a permanent job
is not the valid termination until the secondary job is of the nature that it breaches the terms and
condition of the contract, because of the second job the quality of the employee’s work suffers in
the consequences of the secondary job of employee. If any implied or express terms are stated in
the contract that if she needs to join secondary she required the consent of her employee, in that

case, Berry can terminate Isobel without giving any notice. In our case the employer was not
aware of the secondary job of his employee and when from the third party or any other reason
any employer get to know about the second job and he asked Isobel about this but she refused
about the secondary job which comes under the breach of faith and self-assurance obligation
concerning the worker and manager. Now it is the duty of the Council to check whether the
secondary job of Isobel breaches the condition of the contract of her employment or due to her
secondary job her primary work suffers or not.
In the case of Matthew John v The Star Pty Ltd [2014] FWC 543, the Court held that the
summary dismissal must not be based on irrational principles and prospects of the specific
enactment by the applicant. In this case, the employee was dismissed for negligence and the
court held that the summary removal was punitive and irrational.
As per the provision of Employment Act if employer terminate his/her employee without notice
he has to satisfy the council that the termination is on the sufficient cause so that in the case of
Isobel, Berry has a burden of proof related to the secondary job of Isobel that it was the sufficient
cause for the termination. Multiple jobs in West Australia are not illegal but it must not affect the
performance of the employee on the primary job and breach the faith and self-assurance
obligation. If any party to the contract of employment breaches the faith and self-assurance
obligation or due to the secondary job affects the performance of the primary job, it can be a
ground for summary dismissal.
Conclusion
Summarily dismissal is the method of termination in which notice is not served by the employer
to the employee and the employee was terminated because of his/her serious misconduct. But in
the court proceeding of termination burden relies on the employer that the conduct of the
employee was serious and breaches the mutual faith and self-assurance of the employment
relationship.

Reference:
Teicher, J., Holland, P. & Gough R. (2013), Australian Workplace Relations, Cambridge
University Press, 2013