Unfair Dismissal under Common Law and Fair Work Act 2009

This article discusses the provisions of common law and Fair Work Act 2009 related to unfair dismissal. It explains the factors considered by the Fair Work Commission to determine whether the dismissal was unreasonable, unjust or harsh. It also provides relevant cases and their application. The article concludes with a case study of Andrew who has been dismissed by Monash University and wants to make a claim for unfair dismissal.

Running Head: BUSINESS LAW
Business Law
Name of the Student:
Name of the University:
Author Note

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The issue
Whether the dismissal of Andrew has been an unfair dismissal under the provisions of common
law and the Fair Work Act 2009
Rule
At common law a claim in relation to a wrongful discussion is related to a breach of contract
claim. The claim is based on the fact that the employer did not have the power to terminate
employment contract. The claim comes into existence when the termination of the employee is
done before the fixed term without providing notice. In relation to such claim counterclaim of
summary dismissal can be made by the employer. In case the employer does not have any
justification for terminating the employment it is generally advised to settle the claim. The
damages in relation to a claim of wrongful dismissal at common law correspond to that of a
breach of contract. As provided by the court in the case of Goldburg v Shell Oil (1990) 95 ALR
711 any expenses which have been incurred by the employee to get a new job have to be
compensated in case of a wrongful dismissal by the previous employer.
Provisions in relation to an unfair dismissal are provided under section 382 of the Fair Work
Act 2009 (Cth). It has been stated by the provisions of this section that if two requirements are
satisfied an employee protected from and unfair dismissal. The employee has to be working for
the employer for a period of at least 6 months or for a period of 12 months in case of a small
business employer. The employee must also be covered through an enterprise or award
agreement
The fair work Commission has to be satisfied that there was an actual dismissal of the employee.
According to the provisions of section 386 and employee would be considered to have been

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terminated if the employment was brought to an end before the fixed term are they would have
been forced to resign by the employer. For example in the case of Mohazab v Dick Smith
Electronics (1995) 62 IR 200 it has been stated by the court where the employee has resigned
due to a threat of being fired it will lead to a constructive dismissal.
It has been provided through section 385 of the FWA that a person would be considered to have
unfairly dismissed in case the fair work commission is satisfied that the dismissal in context was
unjust, unreasonable or harsh. Under section 387 of the act in order to determine whether the
dismissal was unreasonable, unjust or harsh there are certain factors which needs to be taken into
consideration. These factors are as follows
 Weather in relation to the capacity and conduct of the employee the reason for dismissal
was valid
 Whether notice an opportunity to respond has been given to the applicant before the
dismissal
 Whether any warnings about unsatisfactory performance has been given to the employee
 Weather there was an unnecessary refusal on the part of the employer to allow the
applicant have a support person with respect to dismissal meetings
 The size and degree of the employer business
 Any other matter which the farewell Commission may consider relevant
There are two kinds of fairness. As stated by the provisions of section 387 (a) the valid reason
requirement depends upon either performance and capacity or behaviour and misconduct. As
stated by the provisions of section 387 (b) the employer must observe procedural fairness while
terminating the employee.

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As stated by the case of Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 329 quoted in
Lyle Whyte v Ullrich Aluminium Pty Ltd [2006] AIRC 692 a valid reason for dismissing and
employee would be a reason which is defensible, well founded or sound and which is not
fanciful, capricious, prejudice or spiteful.
Claim for unfair dismissal is based on the case facts. Therefore conduct through which a conduct
has been justified in one case may not be adequate to justify the same dismissal in another case.
There have been various cases in Australia where the circumstances of an unfair dismissal have
been discussed by the courts. In the case of Road Transport v Gervasoni (2010) 193 IR 279 it
was stated by the court that the dismissal of a truck driver was fair in situation where it is disable
the speed limit and indulged into excessive speeding.
In the case of Lawrence v Coal & Allied (2010) 202 IR 388 it was stated by the court that it
was manifestly harsh to dismiss an employee after 28 years of services for the breach of a safety
procedure even if it was of a serious nature. On the other hand in the case of Parmalat v Wililo
(2011) 207 IR 243 serious breach in relation to safety rules was considered to be a justified
dismissal. In the case of Qantas v Carter (2012) 223 IR 177 it was found by the court that it is
unfair to dismiss a longstanding employee for a minor mistake at work there’s no previous
warnings had been provided and the own discipline policy of the company was not followed..
In the case of Barwon Health v Colson (2013) 233 IR 364 the court stated that distribution of a
letter which personally attacked the supervisor of the employee was a valid reason for dismissal
however that dismissal is unfair because of the lack of previous warning and good record of the
employee.

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In the case of Australian Postal v Rushiti (2012) 224 IR 382 the court stated that a worker
having previously unblemished record was dismissed fairly for sending and storing pornographic
emails which was a clear breach of the IT policies drawn to his attention.
Application
It has been provided via the situation that Andrew has been dismissed by Monash University and
he wants to make an unfair dismissal. Here he has actually been dismissed as required under
section 386 of the FWA as his employment is brought to an end before the fixed term without
notice. He has been working continuously for the University for ten years. He has a previously
unblemished record in relation to his employment. Therefore he is eligible to make a claim form
unfair dismissal under section 382 of the FWA as he has been working for the employer for a
period of at least 6 months. He has been facing some personal problems lately and had been
caught by the police for driving under the influence of alcohol. According to the workplace
policy of the university he was required to notify such offences which he has done in this
situation. He had been however asked to take a counselling session which he has refused stating
that he will not be committing the offence again. He has been dismissed without notice as his
attendance with the counsellor has failed. Under section 387 of the act in order to determine
whether the dismissal was unreasonable, unjust or harsh there are certain factors which needs to
be taken into consideration. Here the capacity and conduct of Andrew is not at fault. He has not
been provided an opportunity to respond before the dismissal and there was no warnings given to
him. Thus the dismissal is unreasonable, unjust or harsh. Further as per section 387 (a) the valid
reason requirement depends upon either performance and capacity or behaviour and misconduct
and here none of such factors are at fault. As provided in Selvachandran v Peteron a valid reason
for dismissing and employee would be a reason which is case defensible, well founded or sound

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and which is not fanciful, capricious, prejudice or spiteful. Here the decision is not defensible,
well founded or sound and is fanciful, capricious, prejudice or spiteful. This can be further
established by the application of the case of Lawrence v Coal & Allied where it was found that it
is harsh to dismiss an employee after 28 years of services for the breach of a safety procedure
even if it was of a serious nature. In addition the provisions of the case of Qantas v Carter also
suggest that where Andrew has been a long standing employee it would not be justified to
dismiss him for the mere reason of not attending the counsellor regularly. Here Andrew was not
provided any previous warnings in relation to the termination and thus as per the case of Barwon
Health v Colson he dismissal is not fair.
However in case Monash had a workplace policy on its website that authorised supervisors to
refer employees to counselling than the claim of Andrew would definitely weaken. This can be
evidently stated via the provisions of Australian Postal v Rushiti where the breach of a IT
policies drawn to the employee’s attention who had a unblemished record was considered as a
fair dismissal. Here it would be better to claim a compensation for Andrews as the courts are
reluctant to order Reinstatement
Conclusion
Thus it can be concluded that Andrew has been dismissed by the university in an unfair manner
and he should make a claim for compensation rather than Reinstatement

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References
Australian Postal v Rushiti (2012) 224 IR 382
Barwon Health v Colson (2013) 233 IR 364
Fair Work Act 2009 (Cth).
Goldburg v Shell Oil (1990) 95 ALR 711
Lawrence v Coal & Allied (2010) 202 IR 388
Lyle Whyte v Ullrich Aluminium Pty Ltd [2006] AIRC 692
Mohazab v Dick Smith Electronics (1995) 62 IR 200
Parmalat v Wililo (2011) 207 IR 243
Qantas v Carter (2012) 223 IR 177
Road Transport v Gervasoni (2010) 193 IR 279
Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 329