Unfair Dismissal under Common Law and Fair Work Act 2009

Running Head: BUSINESS LAW
Business Law
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Author Note

1BUSINESS LAW
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

2BUSINESS LAW
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.