Analysis of Australian Unfair Dismissal Laws and Employee Protection

This essay delves into the intricacies of Australian unfair dismissal laws, examining their effectiveness in protecting employees. It begins by defining unfair dismissal and outlining the legal framework, including the Fair Work Act 2009. The discussion explores various aspects, such as the reasons for dismissal, the role of unions, and the remedies available to employees, including reinstatement and compensation. The essay analyzes relevant case law, such as Addis v Gramophone Co Ltd and Hobbs v The London and South Western Railway Co, to highlight the limitations of damages for emotional distress. It also examines the importance of employment contracts, notice periods, and the powers of the Fair Work Commission. The analysis critically evaluates whether the laws provide sufficient protection, considering factors like business conditions and employee service duration, and concludes by offering a balanced perspective on the strengths and weaknesses of the current legal framework, supported by diverse viewpoints and legal precedents.

Running head: HUMAN RESOURCE MANAGEMENT LAW
Human Resource Management Law
Name of the Student
Name of the University
Author Note

1HUMAN RESOURCE MANAGEMENT LAW
Introduction
Unfair dismissal implies the termination of employment of an employee effected without
any just or proper reason or it has been effected in a way or for a reason, which the laws of
employment does not prevailing in a country does not support. An employer is not justified
under law to dismiss an employee without furnishing a proper reason for the same. Australia
has stringent laws to protect their employees from unfair dismissal1. Moreover, in Australia,
an employment is initiated with a contract between an employee and the employer. An unfair
dismissal will have the effect of breaching the terms of that contract. However, there are
several debates and controversies that has been prevailing in Australia regarding the
effectiveness of the legal protection are available to the employees under the employment
laws in Australia.
This paper will discuss unfair dismissal in the light of the Australian employment laws. It
will present an analysis of the Australian laws regarding the unfair dismissal. It will strive to
critically discuss the effectiveness of these laws to give protection to the employees. It will
also strive to point out the inadequacies that the laws for unfair dismissal has. It will also
strive to infer a conclusion from the discussion throughout the paper.
Discussion
In Australia, the employees are protected against unfair dismissal under the employment
laws prevalent. This covers a couple of ways to protect the employee form an unfair
dismissal. An employer is not empowered to dismiss an employee for a reason, which is
prohibited under the law. This includes the membership of the employee in the union.
However, under the Australian employment law regime, the employee does not have the right
1 Howe, Joanna. Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in the UK,
Australia and the USA. Routledge, 2016.

2HUMAN RESOURCE MANAGEMENT LAW
to challenge such a dismissal on his own. He is required to challenge the fairness of such a
dismissal through the union2.
Under section 385 of the Fair Work Act 2009 (Cth)3, an unfair dismissal is said to have
occurred when an employee has been dismissed, the reason based on which the dismissal has
been effected was not just, unreasonable and unjust or it was not in compliance with the
Small Business Fair Dismissal Code. A dismissal effected for the reason of a genuine
redundancy is also excluded from the purview of unfair dismissal. The Fair Work
Commission has the power and discretion to decide whether a dismissal can be construed to
be an unfair one. The employee who has been dismissed in an unfair manner, has a right to
remedy against such a dismissal. The employee can avail, in case of an unfair dismissal,
either a compensation or a reinstatement. In case of an unfair dismissal, the first thing that the
commission considers in providing a remedy is whether the reinstatement of the employee in
the employment is appropriate. The remedy of compensation is only available to the
employee if the reinstatement would not be appropriate in the given circumstances. The
commission will initially try to reinstate the employee and if not possible and appropriate
provide for a compensation to the employee4.
Under the Australian Common Law, damages are only available to an employee being
unfairly dismissed if the employee has incurred a loss in his income, which would not have
occurred if the breach resulting in the unfair dismissal has not been effected. The main aim of
such a damage is to mitigate the losses incurred by the employee by virtue of such an unfair
dismissal. However, the connection of the dismissal with the loss caused to the employee
needs to be established for claiming damages. If the connection between the two is too
2 Barry, Michael. "Employer and employer association matters in Australia in 2015." Journal of Industrial
Relations 58, no. 3 (2016): 340-355.
3 The Fair Work Act 2009 (Cth) s. 385
4 Southey, Kim. "Unfair dismissal for Australian workers: the hundred-year journey." Asian Academy of
Management Journal 20, no. 1 (2015): 147.

3HUMAN RESOURCE MANAGEMENT LAW
remote, the employee is not entitled to any damages for the same. In the case of Addis v
Gramophone Co Ltd [1909] AC 4885, it was held that damages can only be claimed when
there is a pecuniary loss caused to the employee by the dismissal. Damages cannot be
awarded to for any emotional distress or disappointment caused to an employee. However, in
the case of Hobbs v The London and South Western Railway Co (1875) LR 10 QB 1116, it
has been held that any breach of a contract, which has caused any emotional distress or
disappointment to a party to the contract without any pecuniary losses, is sufficient to entitle
the party so aggrieved to claim damages. Therefore, it can be stated that an employment
contract being a form of contract should also grant damages for emotional distress or
disappointment to a party to the contract without any pecuniary losses. This contention can be
supported based on the fact that an unfair dismissal does not only takes away the scope of
earning of an employee but also causes an emotional turmoil within the employee and
subjects him to an unbearable emotional distress7.
The employment contract in certain cases may provide for certain ways in which the
dismissal of a person needs to be effected. Being a contract, the terms of an employment
contract is binding upon the parties and the termination of such a contract needs to be
effected in the way specified in that contract. In the case of New South Wales Cancer Council
V Sarfaty (1992) 28 NSWLR 688, it has been held that when the employment contract
specifies a way in which the termination of the employment needs to be carried out, it needs
to be effected in accordance with the same. However, although this is in compliance with the
contract law, but as the circumstance that exists at the time of the institution of the contract
5 Addis v Gramophone Co Ltd [1909] AC 488
6 Hobbs v The London and South Western Railway Co (1875) LR 10 QB 111
7 Sutherland, Carolyn, and Joellen Riley. "Major court and tribunal decisions in Australia in 2015." Journal of
Industrial Relations 58, no. 3 (2016): 388-401.
8 New South Wales Cancer Council V Sarfaty (1992) 28 NSWLR 68

4HUMAN RESOURCE MANAGEMENT LAW
does not always stays the same at the time of the termination of the contract, the way of
termination may not feel just in that changed set of circumstances9.
Another issue that arises with the termination of employment is the notice that the
employer is required to give to the employee before effecting the termination of his
employment. In case the employment contract has provided for a specific period for which a
notice is required to be given to the employee before effecting his termination of
employment, the employer needs to follow the same10. However, even if the employment
contract is silent about the notice period to be provided while effecting the termination of the
employment, there is an implied condition that exists, which requires a notice to be provided
to the employee while effecting his employment. In the case of Quinn v Jack Chia (Australia)
Ltd [1992] 1 VR 56711, it has been held that when the employment contract does not provide
for any notice period to be given the employee while effecting his dismissal, there will be a
condition implied in that employment contract, that requires a notice to be given to the
employee irrespective of the silence of the employment contract about the same. However,
this creates an anomaly regarding the period for which the notice is to be given to the
employee while terminating his contract as there is no mention of the same in the
employment contract. The notice period decided to be given by the employer may not seems
to be adequate and just to the employee and the notice period demanded by the employee
may not be justified to the employer. This may lead to dispute between the employer and the
dismissed employee. However, in Australia, the Fair Work Act 2009 (Cth) provides for a
minimum notice to be given to the employees before effecting the dismissal in case the
employment contract is silent about the same to mitigate this dispute. This term of notice
9 Stewart, Andrew. "Continuity and Change in Australian Labour Regulation: Work Choices, Fair Work and the
Role of the ‘Independent Umpire’." (2016).
10 Cutcher-Gershenfeld, Joel E., and Joe Isaac. "Creating value and mitigating harm: Assessing institutional
objectives in Australian industrial relations." The Economic and Labour Relations Review 29, no. 2 (2018):
143-168.
11 Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567

5HUMAN RESOURCE MANAGEMENT LAW
varies between 1week to 5 weeks based on the length of service and the age of the employee.
However, such a minimum notice period will not be applicable to casual employees, fixed
term employee, trainees employed for a specific period or employees terminated for a serious
misconduct1213.
The employee who has been dismissed unfairly, has a claim for a remedy. The employee
subjected to unfair dismissal by the employer may challenge the dismissal before the Fair
Work Commission. The Fair Work Commission has the sole discretion in awarding the
remedy. However, there are certain aspects that the commission is required to review while
rendering a dismissal to be an unfair one. This aspects include the condition of the business
of the employer, the duration for which the service of the employee has been continuing, the
remuneration earned by the employee, the probable remuneration, the employee’s efforts in
minimizing the loss and any other matter that the commission finds relevant14.
The Fair Work Commission has discretionary power to decide upon the remedy that it
desires to award to an aggrieved employee. The employees can be awarded with two
remedies on being unfairly dismissed. The employees can either be awarded with a
reinstatement or be awarded with damages. The remedy, which the employee will be awarded
with will be based upon the decision of the Fair Work Commission. In the case of Blackadder
v Ramsey Butchering Services Pty Ltd [2005] HCA 2215, it has been held by the Fair Work
Commission that the employed can either be reinstated in his job or can be paid a
compensation for being unfairly dismissed. The primary focus of the commission is to effect
a reinstatement of the employee in the employment. However, in case the reinstatement is not
12 www.fwc.gov.au (2019). People excluded from national unfair dismissal laws. [online] Unfair dismissals
benchbook. Available at: https://www.fwc.gov.au/unfair-dismissals-benchbook/coverage/people-excluded
[Accessed 3 Apr. 2019].
13 Thornthwaite, Louise. "Social media and dismissal: Towards a reasonable expectation of privacy?." Journal of
Industrial Relations 60, no. 1 (2018): 119-136.
14 Forsyth, Anthony. "Faculty Collective Bargaining in Australia." Journal of Collective Bargaining in the
Academy 13 (2018): 44.
15 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22

6HUMAN RESOURCE MANAGEMENT LAW
appropriate in any situation a compensation can be awarded. The compensation should be
treated as a last resort and should not be awarded if a reinstatement can be effected. However,
the awarding of a reinstatement may lead to anomaly, as the employee once dismissed
unfairly may not get the same treatment from the employer. The employer may subject the
employee to discrimination, as the reinstatement has been forced by the commission upon the
employer. The employee may also not feel the same way as he use to feel while working for
the company. Moreover, the reinstatement may not be enough to mitigate the emotional
shock or trauma that has been caused to the employee by the termination of his
employment16.
Moreover, the claim under unfair dismissal is only available to the employees where the
employees satisfies certain prerequisites. The employee needs to be employed for a minimum
period of 6-12 months for challenging an unfair dismissal. This seems to be discriminatory as
the loss experienced by an new employee and an experienced employee has the same
weightage. In addition, there are certain situations, where the remedy is not available to the
employees. This can be construed as discriminatory and unjust and all types of employees
needs to be given equal opportunity in the employment laws17. However, the dismissal of an
employee for a misconduct committed by the employee cannot be challenged for being unfair
and the employer in such a case has the power to dismiss the employee without giving any
prior notice of the same. However, the employee has the right to be provided with a chance of
explaining the reason for such a misconduct. The same can be illustrated with the case of
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 CA18.
16 McKeown, T., T. Mazzarol, J. Rice, G. Soutar, B. Hanson, and S. Adapa. "Inspiring Future Workplaces: An
Australia and NZ Small Business Perspective." Small Enterprise Association of Australia and New Zealand
(SEAANZ) (2018).
17 www.fwc.gov.au (2019). Who is protected from unfair dismissal?. [online] Unfair dismissals benchbook.
Available at: https://www.fwc.gov.au/unfair-dismissals-benchbook/coverage-unfair-dismissal/who-protected-
from-unfair-dismissal [Accessed 3 Apr. 2019].
18 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 CA

7HUMAN RESOURCE MANAGEMENT LAW
Conclusion
However, it can be concluded that an unfair dismissal is said to have occurred when an
employee has been dismissed, the reason based on which the dismissal has been effected was
not just, unreasonable and unjust or it was not in compliance with the Small Business Fair
Dismissal Code. The commission will initially try to reinstate the employee and if not
possible and appropriate provide for a compensation to the employee. The employment
contract in certain cases may provide for certain ways in which the dismissal of a person
needs to be effected. Being a contract, the terms of an employment contract is binding upon
the parties and the termination of such a contract needs to be effected in the way specified in
that contract. However, the awarding of a reinstatement may lead to anomaly, as the
employee once dismissed unfairly may not get the same treatment from the employer. The
employer may subject the employee to discrimination, as the reinstatement has been forced
by the commission upon the employer. The employee may also not feel the same way as he
use to feel while working for the company. Moreover, the reinstatement may not be enough
to mitigate the emotional shock or trauma that has been caused to the employee by the
termination of his employment.

8HUMAN RESOURCE MANAGEMENT LAW
References
Addis v Gramophone Co Ltd [1909] AC 488
Barry, Michael. "Employer and employer association matters in Australia in 2015." Journal
of Industrial Relations 58, no. 3 (2016): 340-355.
Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22
Cutcher-Gershenfeld, Joel E., and Joe Isaac. "Creating value and mitigating harm: Assessing
institutional objectives in Australian industrial relations." The Economic and Labour
Relations Review 29, no. 2 (2018): 143-168.
Hobbs v The London and South Western Railway Co (1875) LR 10 QB 111
Howe, Joanna. Rethinking Job Security: A Comparative Analysis of Unfair Dismissal Law in
the UK, Australia and the USA. Routledge, 2016.
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 CA
McKeown, T., T. Mazzarol, J. Rice, G. Soutar, B. Hanson, and S. Adapa. "Inspiring Future
Workplaces: An Australia and NZ Small Business Perspective." Small Enterprise Association
of Australia and New Zealand (SEAANZ) (2018).
New South Wales Cancer Council V Sarfaty (1992) 28 NSWLR 68
Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567
Southey, Kim. "Unfair dismissal for Australian workers: the hundred-year journey." Asian
Academy of Management Journal 20, no. 1 (2015): 147.
Stewart, Andrew. "Continuity and Change in Australian Labour Regulation: Work Choices,
Fair Work and the Role of the ‘Independent Umpire’." (2016).

9HUMAN RESOURCE MANAGEMENT LAW
Sutherland, Carolyn, and Joellen Riley. "Major court and tribunal decisions in Australia in
2015." Journal of Industrial Relations 58, no. 3 (2016): 388-401.
The Fair Work Act 2009 (Cth) s. 385
Thornthwaite, Louise. "Social media and dismissal: Towards a reasonable expectation of
privacy?." Journal of Industrial Relations 60, no. 1 (2018): 119-136.
www.fwc.gov.au (2019). Who is protected from unfair dismissal?. [online] Unfair dismissals
benchbook. Available at: https://www.fwc.gov.au/unfair-dismissals-benchbook/coverage-
unfair-dismissal/who-protected-from-unfair-dismissal [Accessed 3 Apr. 2019].