Isobel's Claim of Unfair Dismissal and Termination by Barry

This article discusses Isobel's claim of unfair dismissal and termination by Barry, analyzing the relevant rules and provisions under the Fair Work Commission. It examines whether Isobel can successfully bring a claim of unfair dismissal and the type of claim she is likely to bring. It also explores whether Barry's termination of Isobel's employment was justified according to the provisions of the Fair Work Commission.

Running head: WORKPLACE LAW
WORKPLACE LAW
Name of the Student
Name of the University
Author Note

1WORKPLACE LAW
Question No. 1
Issue
Whether Isobel can successfully bring a claim of unfair dismissal and what type of claim
she is likely to bring.
Rule
The termination of employment without providing any reason considered being good or
any termination of employment contradicting the country’s legislation is treated as unfair
dismissal in the Employment Law (Van der Waarden & Wallace-Bruce, 2018).
The Fair Work Commission lays down the conditions, in fulfillment of which a dismissal
would be termed as an unfair dismissal. The condition that considers a dismissal unfair are-
 The dismissal is of harsh, unreasonable and unjust nature.
 The dismissal was not related to genuine redundancy.
 In case of a person being a small business employee, his or her dismissal must not be
consistent with the small Business Fair Dismissal Code (www.fwc.gov.au, 2019).
In Re Ranger Uranium Mines Pty Ltd; Ex parte FMWUA [1987] HCA 63 it was held
by the court that the existing employees have the authority of creating an industrial
dispute to reinstate any unfairly dismissed former employee.
In the Form F2 of the Australian Fair Work Commission the terms and conditions of a
person lodging unfair dismissal or termination application have been laid down
(www.fwc.gov.au, 2019). Under such provision of the Fair Work Commission the conditions of
lodging an unfair dismissal application are-

2WORKPLACE LAW
 A person needs to be a large business employee at least for 6 months or a small
business employee at least for 12 months.
 A person should be the employee of a national system employer.
 The employer needs to take the initiative for the employee’s termination or a force
must be present behind the resignation of the employee.
The Fair Work Commission also lays the provisions regarding the coverage of the
employees under the unlawful termination law. The Fair Work Commission states that a person
in order to be covered under unlawful termination law must not give their resignation willfully
without any force of their employer for resigning (www.fwc.gov.au, 2019).
Section 773 of the Fair Work Act 2009, states that the filling of FWC application can be
done in relation to dealing with any dispute, if-
a) The employer was responsible for the employee’s termination of employment.
b) It has been alleged that the employee’s employment has been terminated by their
employer or by any industry based association that is entitled in representing such
industrial interest of the employee, contravening Section 772(1) of the Fair Work Act,
2009.
In the case of Hunter v The Commonwealth of Australia [2013] FWC 7917 the Fair
Work Commission has ruled that a dismissal of an employee must not be treated as harsh,
unreasonable and unjust as vexatious allegations of misconduct being made against manager.
Application
In this provided scenario, Isobel worked as an employee of the East Sydney Council for a
contract term of 3 years and was a performer in aerial arts trapeze as her secondary job. After her
request for reduction of the working hour was rejected, she resigned the job and filed an unfair

3WORKPLACE LAW
dismissal claim. Isobel filed the unfair dismissal claim as the believed that her dismissal was
harsh, unreasonable and unjust as stated in the Fair Work Commission regarding the claim of
unfair dismissal. This can be supported with the case of Re Ranger Uranium Mines Pty Ltd; Ex
parte FMWUA [1987] HCA 63. As stated in the Fair Work Commission’s Form F2, a person
would be eligible in lodging an unfair dismissal application if the person is being subject to the
termination by his or her employer and if a force has been there by the employer to the employee
to resign from the job position. Thus, the provision cannot be applied here as the application for
resigning from the job position was submitted by Isobel herself and no force by the employer
was present here for the resignation of Isobel.
As it has been already mentioned that Isobel resigned the job on her own without any use
of force by her employer in this behalf, the provisions regarding unfair treatment that has been
provided in the Australian Fair Work Commission cannot be applied here. In this case, Isobel
requested to reduce her working hours to 22 hours from 38 hours which the company eventually
rejected and after such rejection she submitted the letter of resignation and an unfair dismissal
claim was submitted by her. The Australian Fair Work Commission provides that a person will
not be covered by the provisions of the Fair Work Commission if he resigns from the job by his
or her own without the presence of any type of force of employer in this regard. Thus, Isobel will
not be covered under the provisions of the Fair Work Commission.
As S. 773(1) of the Fair Work Act, 2009 states that a FWC application may be made
only by a person who has been terminated by his or her employer. In the provided scenario,
Isobel resigned from her job position by her own after being rejected by her employer the request
to reduce working hour from 38 hours to 22 hours. Thus, the laid provisions in S. 773(1) of the

4WORKPLACE LAW
Fair Work Act, 2009, cannot be applied here in Isobel’s case. The case of Hunter v The
Commonwealth of Australia [2013] FWC 7917 perfectly fits here in this scenario.
Conclusion
Hence, it concludes that Isobel is likely to bring a successful claim of an unfair dismissal
as provided under the Fair Work Commission which she cannot bring successfully.
Question No. 2
Issue
Whether Barry terminating the employment of Isobel was justified in relation to the
provisions of Fair Work Commission.
Rule
The provisions regarding unlawful termination are being dealt by the Fair Work
Commission (www.fairwork.gov.au, 2019). Unlawful termination has been termed as an
employee’s dismissal by his or her employer for the reasons underlying-
 For the race, sex, sexual orientation, colour, age, physical or mental disability,
marital status, religion, political opinion, pregnancy, social origin or national
extraction, career responsibility and family responsibility.
 Being temporarily absent for the reason of illness or of injury from work.
 Being the member or the non-member of trade union or for participating in any
industrial activity.
 Taking of any maternity or of any parental leave.

5WORKPLACE LAW
 Being absent for the reasons of any voluntary emergency activity of management,
form work.
 The exercising of any workplace right or making the plan of exercising any
workplace right by way of enquiring or complaining in relation to employment or
the participation into any proceeding against an employer.
In the Cannon v Poultry Harvesters Pty Ltd [2015] FWC 3126 case, the court found out
that the defendant Ms. Cannon’s dismissal was not fair and ordered for the payment of award of
six week’s salary as a compensation.
The employees are generally protected from any unlawful termination in accordance to
the provisions under the Fair Work Act, 2009.
The employer should not terminate an employee without serving a prior notice to the said
employee, of his or her employment’s last day. An employee has two options which are either to
work throughout the said period of notice or having the generated amount out of the period of
notice, also termed as the pay in lieu of notice (Van der Waarden & Wallace-Bruce, 2018). It has
been held in the case of Quinn v Jack Chia (Australia) Ltd (1992) 1 VR 567, that the employee
must receive a notice reasonably stating his or her termination from the employment.
The entitlement of an employee regarding his or her final pay has been stated by the Fair
Work Commission which says-
 Any of the outstanding wages or any kind of remuneration which has been owed.
 Any of the pay in lieu of notice.
 Any kind of accrued annual leave and any kind of entitlements regarding leaves
of a long service.

6WORKPLACE LAW
 Any kind of balanced time offs instead of any accrued overtime by such
employee, but has been not taken till now.
 Any kind of entitlements or any payment of redundancy if only that employee is
redundancy eligible.
The Australian Fair Work Commission has been stated in its Form F2 the conditions
which is to be fulfilled by a person in order to lodge an unfair dismissal or unfair termination
application (www.fwc.gov.au, 2019). As stated by the Commission in order to make unfair
dismissal application any employee must believe that his or her dismissal was subject to harsh,
unjust or was unreasonable. The case of Byrne v Australian Airlines Ltd [1995] HCA 24 lays
down a test for deciding whether such dismissal was subject to harsh, unjust or was
unreasonable.
Application
In the provided scenario, Isobel worked for the East Sydney Council as the event
coordinator as her primary job and a performer of aerial arts trapeze at the night as her secondary
job, which her supervisor Barry was not aware of. One day evening Barry found Isobel doing her
secondary job in a club he visited and on the latter day Barry terminated Isobel in the office after
some interrogation. The Fair Work Act provisions in relation to any employee’s dismissal by his
or her employer have been violated here. Such dismissal is to be considered as unjust and harsh
and the Byrne v Australian Airlines Ltd [1995] HCA 24 case and also the Cannon v Poultry
Harvesters Pty Ltd [2015] FWC 3126 case fits appropriate in this situation. The supervisor
Barry terminated Isobel in spot without the service of any prior notice of the termination of
employment. The provision of giving prior notice of the termination of employment has been
laid in Fair Work Commission. Thus the provision relating to giving prior notice of the

7WORKPLACE LAW
termination of employment has been violated by in this provided case. The Quinn v Jack Chia
(Australia) Ltd (1992) 1 VR 567 case supports this situation. The provisions regarding the
entitlement of final pay of the employees has been stated in the Fair Work Commission which
says that an employer must all the final pays of an employee before his or her termination. In the
provided scenario, Isobel has been terminated immediately by her supervisor Barry from the job
position without the service of any prior notice of the termination of employment and also
without making payment of the final pay. Thus, the Fair Work Commission’s provisions relating
to final pay has been violated in this case.
Conclusion
Hence it concludes that, Barry terminating the employment of Isobel was unjustified in
relation to provisions of the Fair Work Commission.

8WORKPLACE LAW
Reference
Byrne v Australian Airlines Ltd [1995] HCA 24
Cannon v Poultry Harvesters Pty Ltd [2015] FWC 3126
Fair Work Act 2009
Hunter v The Commonwealth of Australia [2013] FWC 7917
Quinn v Jack Chia (Australia) Ltd (1992) 1 VR 567
Re Ranger Uranium Mines Pty Ltd; Ex parte FMWUA [1987] HCA 63
Van der Waarden, N., & Wallace-Bruce, N. (2018). Employment law. Chatswood, N.S.W.:
LexisNexis Butterworths.
www.fairwork.gov.au. (2019). Welcome to the Fair Work Ombudsman website. Retrieved from
https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/
minimum-workplace-entitlements/ending-employment
www.fwc.gov.au. (2019). Termination of employment. Retrieved from
https://www.fwc.gov.au/termination-of-employment
www.fwc.gov.au. (2019). Unfair dismissal. Retrieved from https://www.fwc.gov.au/termination-
of-employment/unfair-dismissal
www.fwc.gov.au. (2019). Unlawful termination. Retrieved from
https://www.fwc.gov.au/termination-employment/unlawful-termination