Unfair Dismissal Claim under Fair Work Act 2009

Employment laws 1
Employment Laws

Employment laws 2
Answer 1
Part B
Issue:
Whether Lando has right to file claim of unfair dismissal under the fair Work Act 2009, and the
orders which can be made by the Court if case is upheld?
Law:
In case person is unfairly dismissed or dismissed by the employer, or such person is forced to
resign because of the pressure imposed by employer on the employee, then such person has right
to make application to the Fair Work Commission (FWC) for seeking the reinstatement or
compensation. This claim is known as the unfair dismissal claim. Dismissal of the person is
considered as the unfair dismissal if such person:
 Dismissed by the employer.
 Dismissed because of any harsh, unjust, or unreasonable reason.
 Dismissal was not the case of the actual redundancy1.
Section 385 of the Fair Work Act 2009 states the provisions related to the unfair dismissal. As
per this section, dismissal is considered as the unfair dismissal if FWC is satisfied:
 Person is dismissed by the employer.
 Dismissal is done because of any harsh, unjust, or unreasonable reason.
 Dismissal was not the case of the actual redundancy2
Section 3863 of the Act states the meaning of the dismissal and as per this section person is
considered as dismissed person if the employer terminates the person from his employment or
person is resigned from the employment because of pressure of employer. This can be
understood through case law Gerrard v UPS Pty Ltd unreported, Eames C, 19 March 2004,
PR9446814; Allan West v Holcim (Australia) Pty Ltd. [2017] FWC 2346. (U2016/14182).5
Section 387 6of the Act defines the criteria of determining whether reason is harsh or unjust. As
per this section, for the purpose of considering whether dismissal of the employee is harsh and
unjust, following factors are considered by the FWC:
1 FWC, 2018, Unfair dismissal – Am I eligible to apply?, <
https://www.fwc.gov.au/termination-of-employment/unfair-dismissal/eligibility>, accessed on 17th June 2018.
2 Fair Work Act 2009- Section 385.
3 Fair Work Act 2009- Section 386.
4 Gerrard v UPS Pty Ltd unreported, Eames C, 19 March 2004, PR944681.
5 Allan West v Holcim (Australia) Pty Ltd. [2017] FWC 2346. (U2016/14182).
6 Fair Work Act 2009- Section 387

Employment laws 3
 Whether dismissal is done on the basis of any valid reason in context of the capacity of
conduct of the person, and this also includes the safety and impact of such action on other
employees.
 Whether such reason is notified to that person7.
 Whether such person gets the opportunity to give justification in context of that reason.
 Whether there is any unreasonable refusal on the part of the employer for the purpose of
allowing the person to assist in any discussions related to the dismissal (Royal
Melbourne Institute of Technology v Asher (2010) 194 IR 18).
 In case dismissal is related to the unsatisfactory performance of the person, then Court
consider whether such person had been warned for the unsatisfactory performance of the
contract or not.
 Any other matter which is considered as relevant y the FWC9.
In case law Linfox v Stutsel [2012] FWAFB 709710, Court stated that if any employee post any
derogatory, offensive and discriminatory statements or comments on the social media in context
of the managers or another employees of the company or about the company itself, then it was
considered as the valid reason for the termination of the employment. In this case, enquiry is
conducted in context of the nature of the comments and statements made by the employee, and
also the width of their publication.
Section 389 of the Act defines the provisions related to the genuine redundancy and as per this
section, dismissal of the person falls under the case of the genuine redundancy if:
 Employer of the person does not require the job of the person to be performed by any
person because any changes occurred in the operational requirements of the business.
 Employer of the person complies with the obligation which is stated under the modern
award or that enterprise agreement in which employee falls.
This section further states that dismissal of the person is not fall under the case of genuine
redundancy, it all the situations clearly reflects that person has right to redeployed in the
organization of the employer or in the organization which is associated entity of the employer
(Hallam v Sodexo [2017] FWCFB 684711).
In case law Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 423912, FWC deals
with the application of the unfair dismissal on pat of Mr. Maswan, and in this FWC stated that
Mr. Maswan had been dismissed on the ground of redundancy. However, in this employer does
not follow the proper procedure in which he is required to consult with the employees in context
7 Anna Chapman, 2009, protections in relation to dismissal: from the workplace relations act to the fair work act, <
http://www5.austlii.edu.au/au/journals/UMelbLRS/2009/32.pdf>, accessed on 17th June 2018.
8 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1
9 FWC, Unfair dismissal, < https://www.fwc.gov.au/termination-of-employment/unfair-dismissal>, accessed on 17th
June 2018.
10 Linfox v Stutsel [2012] FWAFB 7097.
11 Hallam v Sodexo [2017] FWCFB 6847.
12 Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239.