Unfair Dismissal Claims under Fair Work Act 2009

Employment laws 1
Employment Laws

Employment laws 2
Answer 2
Introduction:
The biggest risk faced by the employer who dismisses the employee on the basis of unfair
reason in Australia is covered under part 2-3 of the fair Work Act 2009. Unfair dismissal claims
are considered as those claims in which employer dismiss the employee on the harsh and
unreasonable reason. These claims are subject to the arbitration hearing by the members of the
Fair Work Commission, and these members hold the power to take decision whether such
dismissal is harsh or unjust in context of the different statutory provisions1.
This part of the paper critically evaluates the strengths and weakness of the part 3-2 of the fair
work Act 2009 for the purpose of establishing the framework which deals with the unfair
dismissals, and also ensure balance in the needs of the employer as well as employees.
Discussion:
Section 3852 of the fair work Act 2009 states the meaning of the unfair dismissal and as per this
section in case employee is dismissed by the employer for the reason which is unjust, harsh, and
unreasonable then such dismissal is considered as the unfair dismissal. This section further
states that, dismissal is considered as the unfair dismissal, if such dismissal does not include the
case of the genuine redundancy.
It must be noted that, this law provides the legal protection to the employees against the unjust
termination from their employment and this law ensures the significant fame in Australia’s
industries, especially in last few years. In general form, unfair dismissal is considered as the
termination of the service of employees without exercising the due care in context of the rights of
the workers3. Section 3874 of the Act defines the criteria through which Court determines
whether reason for dismissal is the harsh, unjust, and unreasonable or not, and for this purpose
Court provides number of reasons.
There are number of times when employees end employment with their employers, but number
of times there are situations when employers end the employment and this can happen for
number of reasons. In case, employer ends the employment because of any unreasonable reason
then victim that is employee has various rights under the unfair dismissal law. This legislation
provide number of rights to the employees who are dismissed by their employers because of any
1 CCIQ, Employers: Understanding unfair dismissals, https://www.cciq.com.au/assets/documents/law/CCIQLaw-
unfair-dismissal.pdf, accessed on 16th June 2018.
2 Fair Work Act 2009- Section 385
3 Kim Southey, (2015), unfair dismissal for australian workers: the hundred-year journey, Asian Academy of
Management Journal, Vol. 20 (1), 147–164.
4 Fair Work Act 2009- Section 387.