Unfair Dismissal in Australia- Lesson learns to employers

Employment Law 1
Employment Law

Employment Law 2
Introduction:
Many experts show concern in context of the current federal ‘unfair dismissal’ legislation such as
Federal government sated that, this legislations is unwieldy and procedure established in this
legislation demand small business operators to ensure expertise in common law1. It must be
noted that Federal legislation in this area is quite recent, and it highlights the employee’s ability
to seek relief from the ‘unfair dismissal’. It is the part of the state jurisdiction since the
Federation, and since the established of the Workplace Relations Act 1996 the process and
procedures of both the state and Federal systems have usually been the same. The concepts
related to the unfair dismissal in context of the federal legislation come in witness since 1993 and
this legislation sis resulted from the Industrial Relations Reform Act, 1993 which is considered
as the amendment of the Industrial Relations Act 19882. It must be noted that, there is long
history of the establishment of the unfair dismissal in the Australia, and the main purpose of this
establishment is to ensure justice with those employees who are dismissed by their employer on
the basis of unfair grounds, and it also teach the lesson to the employers of the organization.
Research topic of this paper is “Unfair Dismissal in Australia- Lesson learns to employers”, and
the research question for the purpose of this paper is “how unfair dismissal provisions in
Australia teach lesson to the employers, and ensure protection of the employees”. This paper
mainly highlights the main purpose of unfair dismissal provisions. Structure of this paper
includes the literature review, and after that brief conclusion is stated.
Literature Review:
It must be noted that, maximum but not all the all the employers operates their business in
Australia are covered under part 3-2 of the Fair Work Act 20093 (Cth) (the Act). Those
employers who are not fall under the provisions of these laws and do not meet the definition
sated by the national system employer under the Act are usually State employers are generally
state employers and fall under the state scheme4.
1 Federal Government Media Release CCH 29 October 2003.
2Brown, M. V., 1989, The Demise of Compensation as a Remedy for Unfair Dismissal in Western Australia: a
Casualty of the Robe River Dispute, 19 UWAL Rev. 29.
3 Fair work Act 2009- Part 3-2.
4 Nick Ruskin K & L GATES, (2014). Unfair dismissal laws and practice, <
http://www.klgates.com/files/Publication/acf17158-abb5-4928-b880-01d5a8a35d05/Presentation/
PublicationAttachment/15047590-dbcf-4f8a-9ba0-037226f89b87/InHouseCounsel.May2014-

Employment Law 3
As Nick Ruskin K & L Gates (2014) further stated that, even though not all the employees of the
national system employers are protected from the unfair dismissal, but following are the
employees who are protected:
 Any employee who completed almost service of six months on continuous basis, or in
the case of an employee of a small business employer, service of twelve months on
continuous basis.
 An employee on whom either Modern Award or an Enterprise Agreement is applicable or
an employee whose annual rate of earnings, excluding superannuation under the
Superannuation Guarantee Legislation is below or equal to the high income threshold.
It must be noted that for ensuring the dismissal under this Act, the employment of the employee
must be terminated at the employer’s initiative. In other words, resignation of the employee
cannot be considered as the termination unless such resignation falls in the scope of constructive
dismissal5. As stated by the ELCWA, constructive dismissal arises at the time when the
employer leaves no option for the employees other than resignation because of his conduct6. In
case, employment of the employee is of fixed term nature and expires, then the ending of that
employment will not be considered as termination of the employee by the employer. Claim
related to unfair dismissal is not considered as the valid claim, if an employee is under the
training arrangement and the employment is terminated at the end of the arrangement7.
In case, employee has been unfairly dismissed or sack by their employer, or they were forced to
resign because of the conduct of their employer, then they have right to file claim under the Fair
Work Commission for reinstatement or compensation. Their claim can be considered as the
unfair dismissal claim if they are dismissed and their dismissal was harsh, unjust, or
unreasonable8.
Unfair_Dismissal_Laws_and_practices_NRuskin.pdf>, Accessed on 25th May 2018.
5 FWO, Unfair Dismissal, < https://www.fairwork.gov.au/ending-employment/unfair-dismissal>, accessed on 25th
May 2018.
6 ELCWA, Fact Sheet – Constructive dismissal: when you are forced to resign, <
https://elcwa.org.au/assets/factsheets/Constructive%20dismissal/Constructive%20dismissal%20-%20when%20you
%20are%20forced%20to%20resign.pdf>, Accessed on 25th May 2018.
7 Thompson solicitors, Summary of the law on unfair dismissal and redundancy, <
https://www.thompsonstradeunion.law/media/1175/unfair-dismissal-a-summary-of-the-law-thompsons-
solicitors.pdf>, accessed on 25th May 2018.
8 FWC, Unfair dismissal, https://www.fwc.gov.au/termination-of-employment/unfair-dismissal#field-content-1-
heading, Accessed on 25th May 2018.