Effectiveness of Unfair Dismissal Processes in Australia

This research paper evaluates the effectiveness of unfair dismissal processes in Australia, analyzing the arbitration of dismissal disputes by labor courts and the impact of social values and judicial ideology on decisions. It also examines the changes in legislation and procedures over the years.

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Do Australia’s unfair dismissal processes achieve their purpose?

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Summary/abstract of question: The present research proposal has been made to analyze the
effectiveness of unfair dismissal processes in Australia. For this purpose, two channels have been
isolated through which the social values of federal government for influence the decisions made
by the courts in this regard. These are (i) through changes to the established rules and (ii) through
labor court appointments. In the present research paper, an attempt has been made to analyze the
arbitration of dismissal disputes by the labor courts in Australia characterized by two major legal
reforms introduced in case of unfair dismissal statues. In these attempts, the purpose is to test the
effectiveness of the decisions delivered by the courts administering unfair dismissal disputes.1
The concept of workplace justice is ideologically charged.2 The labor courts operate in the
context where the judicial decisions also depend on social values as they depend on established.
Social values like freedom, fairness and efficiency are the result of digital projection of strong
ideological arguments regarding the rights of workers and job security, disciplined workforce to
business freedom and the appropriate level of intervention by the government in labor markets.
As compared with it, the established rules related with employment protection revealed a longer-
term of evolution of the acceptable standards and norms that are a part of case law or the
statutory law (unfair dismissal legislation).
The purpose of unfair dismissal legislation is to maintain a balance between the demand for
employment security by the workers and the demand of the firms for flexible workforce
adjustment and discipline.3 As a result of the fact that to a large extent, these demands are
mutually exclusive, resolving the unfair dismissal disputes prove public arbitration institutions
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has been a controversial issue and was moved to ideological debate. Moreover, it is expected that
judicial ideology will play a major role in labor courts as compared to the common law courts.
The labor courts in Australia are quasi-courts. They offer a with weaker standards as compared
to the Federal courts (common law courts).

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Contents
Aims and objectives.....................................................................................................................................5
Research question.......................................................................................................................................6
Introduction.................................................................................................................................................8
Background..................................................................................................................................................9
Rationale...................................................................................................................................................10
Methodology.............................................................................................................................................11
Limitations and delimitations....................................................................................................................12
Ethical considerations................................................................................................................................12
Bibliography...............................................................................................................................................14

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Aims and objectives: The present research has been conducted with them to find out the
effectiveness of unfair dismissal procedures in Australia. The question has been asked in this
regard is the unfair dismissal laws are themselves unfair. There are a number of reasons due to
which the employers may end the jobs of their employees. While sometimes people end jobs due
to their personal reasons, but on many occasions, there are circumstances beyond the control of
the victims and they are let go by the employer. For example, it happens when a company
becomes insolvent. In this regard, there are several persons who feel that they have been
dismissed unfairly from their jobs and should take action in this regard.
The Fair Work Commission (FWC) has the responsibility of the labor court dealing with
conciliation and arbitration offer wide range of labor disputes in Australia. It is divided in ten
panels, and the most prominent is the Termination of Employment Panel (TEP). The judges of
TEP are known as commissioners and their appointed on permanent, full-time basis. The
appointing authority is the Gov. Gen. of Australia on the basis of the recommendations made by
the government.4 The nominations for appointment to labor court are based on the demonstrating
experience of the candidate in labor law, workplace relations, business management and
knowledge of the workings of particular industries. Therefore, the judges are selected from a
wide range of occupational backgrounds, however. Generally they are lawyers and attorneys,
human resource managers, former businessman, industry experts, delegates of the unions of civil
servants.5 Other panels of FWC (like Minimum Wages or Industrial Action) allocate cases to the
judges on account of their industry-specific background. However is not the case with TEP. In
this case, the allocation of cases is independent of specific background of the judge.
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By legislating statute, the FWC applies a "balance of probabilities" standard while arbitrating
unfair dismissal disputes, which is much weaker as compared to the standard of "beyond
reasonable doubt" that is applied in the federal courts by the common law judges. Even in case of
highly complex cases, it is considered as if the judge in charge, believes that the balance of
probabilities, lies slightly in favor of one of the party made a decision, which confirms to the
standard.6 In this regard, the social values as well as the work background of the Commissioner
of the FWC may play an important role as compared to the common law courts.
Research question: The research question in the present work is to analyze the
effectiveness of unfair dismissal processes in Australia. Therefore, it will be suitable to use the
three major statutory regimes, which govern unfair dismissal processes. Federal regulation of
unfair dismissal started in the regime of Keating government when the Industrial Relations
Reform Act, 1993 was introduced under the external affairs power of the Commonwealth. This
legislation was based on the Convention on Termination of Employment of the International
Labor Organization.7 In this legislation, dismissal was described as unfair if, after review of the
available evidence, third parties (labor courts and tribunals) can describe the dismissal as harsh,
unjust or unreasonable.8 The responsibility of dealing with unfair dismissal cases was given to
the Australian Industrial Relations Commission which also made orders for the reinstatement of
providing compensation to the employees who were unfairly dismissed. The States in Australia,
beginning with South Australia had also introduced their own dismissal regulations even before
the enactment of the Federal legislation. The result was that the application of these State
provisions continues even after the introduction of Commonwealth legislation. The result was a
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complex web of regulations and ambiguities in jurisdictions.9 In the early years of the 1993, civil
cases were brought, which resulted in significant protests by the employers. During the years, the
legislation and procedures were refined until a more workable balance could be achieved in the
form of the introduction of Workplace Relations Act, 1996.
In 1996, after the election of Howard government, there was renewed pressure by the
organizations of employers for removing unfair dismissal regulation, particularly in case of small
businesses. When Howard government in control of both houses of parliament in 2005, it
declared the reform of unfair dismissal regulation as a major part of the WorkChoices changes
introduced by the government, which were present in the Workplace Relations Amendment
(Work Choices) Act, 2005.10 According to WorkChoices, the jurisdiction of Commonwealth
increased as the corporations’ power of the Commonwealth was used to supersede the
jurisdiction of the States regarding all employment contracts often incorporated businesses. But
at the same time, the WorkChoices reforms also significantly reduce the coverage of law.11 The
businesses that have less than 100 workers were exempted from the claims for unfair dismissal.
The scope of the prediction was reduced for the employees who were making claims on the basis
of procedural grounds.12 A new definition of redundancy as the dismissal for "genuine
operational reasons" ruled out any claims that may have succeeded under the earlier regulations.
According to an estimate by the then Department of Employment and Workplace Relations,
WorkChoices decrease the coverage of protecting employees from 6.7 million to 3.7 million.
There was a decrease of 45% in the coverage. Similarly, there was a drop in the number of
claims lodged by the employees and arbitrated by the labor courts between 2006 and 2009.
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Introduction: The Fair Work Act was introduced in July 2009. It was administered by a new
body, Fair Work Australia. The result of this legislation was that the coverage of workplaces by
federal legislation was increased. State powers were transferred to the Commonwealth by all the
states, except Western Australia. Once again the businesses having less than 100 employees were
brought under the planes for unfair dismissal. The businesses having less than 15 employees fell
under the purview of Small Business Fair Dismissal Code. It was a streamline compliance
procedure described for the business, which arguably facilitated the demonstration of fair
dismissal to third parties. The employees of businesses having less than employees were also
prescribed along with qualifying period. For them, this period was one year as compared to six
months prescribed for the employees of larger firms. Limited redress was available if such
businesses were in a position to establish that they had followed the Code. The protection
provided to the workers increased with the restoration of older definition of 'genuine
redundancy'. Similarly, minor revisions were made to Fair Work Act in 2013.
The present research paper also tries to evaluate the level of ideological bias present in the
decisions delivered by the liberal courts regarding unfair dismissal. If ideological bias exists in
the decisions of the commissioners, then the composition of courts, that regularly changes on
account of education and the appointments made by the government is another channel through
which the social values of a particular political party may have an impact on judicial decisions.
As compared to civil courts, the judicial ideology is likely to play an important role in labor
courts. As stated above, in most of the countries, labor courts are quasi courts.13 They operate
with weaker standards as compared to the common law courts. In case of Australia, the changes
in labor court, while arbitrating unfair dismissal disputes, apply the standard of "balance of
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probabilities". This standard is much weaker as compared to the standard of 'beyond reasonable
doubt' that is required to be applied by common-law judges operating in Federal courts. Even in
case of very complex cases, it is considered to be sufficient that the judge in charge is of the
opinion that the balance of probabilities lies slightly in favor of a party to make a decision, which
confirms to such standard.14 In some extreme cases, for example, the judges have been successful
in ruling in favor of the employee on account of non-procedural and nonsubstantive factors like
the level of hardships faced by the dismissed employee. Even if such extreme use of
discretionary powers can be seen rarely in decisions related with dismissal disputes, it reveals the
level of scope for maneuver that the judges of labor courts can call upon as compared to the
Federal court judges.15
Background: The life tenure enjoyed by the judges and independently set salaries are the
significant safeguards that have been providing against any ideological influence the other
branches of the government. However these safeguards are not necessarily efficient for deterring
political interference. Politicians may still try to impact judicial decisions by adopting punish and
reward strategies. The punishments can include barring the promotion of the judges to higher
courts or to reduce the budget of the court and its jurisdiction. On the other hand, rewards can be
present in the form of markets for political activism where the demand made by politicians for
conducting policy through judicial rulings meets the judicial supply of ideological rulings.16 It is
worth mentioning at this point that the credibility of judiciary as an institutional control of the
powers of the government relies on its independence from executive and legislature. There are
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many who believe that the independence of judiciary is the "priceless possession of a country
under the rule of law, protecting fundamental freedoms and the pursuit of economic prosperity".
The evidence related with politically motivated behavior in the judiciary will therefore be a
matter of major concern for public interest.
Rationale: Legal protection that has been provided against unfair termination of employment
has remained significant in the industrial landscape of Australia, particularly during the last 30
years. Unfair dismissal in Australia, refers to the termination of service often employed without
exercising due care by the employer regarding their right to procedural justice enjoyed by the
workers.17 Unfair dismissal also takes place when a dismissal reveals disproportionate
application of the third objective of the employer to terminate the relationship of employment.
Therefore in this research paper, and evaluation has been made of the unfair dismissal
protections provided to the workers in Australia by the government. The developments that the
lesson the last 30 years reveal a time that coincides with a deed of neoliberal reforms which
deregulated the relationship of employment. The scope of present protections provided to the
employees against unfair dismissal is wide. The result is that most of the employees in Australia,
have to follow the legislative requirements by terminating the employment contract offer
workers as a result of misconduct on the performance or due to redundancy. The result is that the
owners of businesses and managers are required to deal with the dismissal of an employee by
strictly applying procedures and distributive justice in case they want to avoid any claim for
unfair dismissal, which may escalate to binding arbitration.
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The issue of a person losing his or her job as a result of unfair or arbitrary dismissal is also a
matter of social interest. The reason is that it cuts to the core of justice and the right of the people
to be "free from arbitrary and oppressive treatment, whether by the government or by private
persons". The arbitration of the termination of an employment is now present under the law in
Australia. It introduces a measure of public interest to a public ride that would otherwise be
regulated only by the common law. The regulation by government makes employment security is
the field of political interests instead of the subject of free market forces that are related with
prevailing and socially tolerated, new liberal philosophy.18 Under the contract law, a right has
been provided to the employers to dismiss the worker. But the just execution of these rights is
now being mainly judged by a federal tribunal that has the word authority by federal legislation.
The present obligations imposed on the employers have been strongly influenced by the results
of federal elections held in 2007 during which the people of Australia provided majority to the
government that promised to play a significant role in protecting the employment security.
Methodology: For the purpose of conducting the present research, qualitative research has
been adopted. Qualitative research is a scientific method of observation for collecting non-
numerical data. This type of research is related with the meanings, characteristics, concepts
definitions and descriptions of things and not to their "counts or measures". In this way,
qualitative research approach is adopted, in case of several academic disciplines, mainly focusing
on human elements of social and natural sciences. At the same time, this research approach is
also applied in qualitative market research, service demonstration by nonprofits, business and
journalism.
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Limitations and delimitations: Limitations are the influences that cannot be controlled
by the researcher. In this the limitations can be described as the shortcomings, influences of
conditions that are not under the control of the researcher. As a result of the limitations that can
be found in the present research, several restrictions have been placed on methodology and
conclusions. For example in the present research, the vast amount of data was not possible to be
analyzed in a short time. Moreover, the lack of resources was also a limitation for the present
research.
On the other hand, delimitations are the choices that have been made by the researcher and then
need to be stated. Delimitations described the boundaries that have been set for the present
research. In this way, Delimitations explain the things that are not going to be done by the
researcher, the literature that is not going to be reviewed, the population that is not going to be
studied and the methodological procedures that are not going to be used. For example in the
present research, case law is not being analyzed in order to explain the effectiveness of onset
dismissal processes in Australia. As a result of the word limit, many cases could not be discussed
in detail, which were related with unfair dismissal processes.
Ethical considerations: Ethical considerations in case of a research are very important.
Ethics can be described as the standards on norms of conduct which separate between right and
wrong. These ethics helps in deciding the difference between being acceptable and unacceptable
behavior. Ethics are important consideration in research. First of all ethical standards prevent the
fabrication or falsification of data. In this way promotes the pursuit of truth and knowledge.
Ethical behavior will also important for collaborative work, because it encourages an

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environment of accountability, trust and mutual respect. In the present research, all the data has
been collected ethically.

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