Employment Law: Employee Duties, Termination, and Fair Dismissal

This report delves into the intricacies of employment law, focusing on the duties owed by employees to their employers and the legal procedures involved in terminating employment. The analysis begins by outlining the various duties of an employee, including the duty of competence, fidelity, and confidentiality, referencing relevant case law such as Ottoman Bank v Chakarian and Lister v Romford Ice & Storage. The report then addresses the issue of lawful termination, detailing the requirements under the Fair Work Act 2009 (Cth), including the need for a valid reason for dismissal, procedural fairness, and reasonable notice. It examines the implications of unfair dismissal claims and the importance of providing employees with an opportunity to respond to allegations, as highlighted in cases like Stewart v Sea Change Conveyancing Pty Ltd and Allen v New Horizons Ent Ltd. The report concludes by applying these legal principles to a hypothetical scenario, offering practical guidance on how employers can lawfully terminate an employee while adhering to procedural fairness and avoiding potential claims of unfair dismissal.

Running head: EMPLOYMENT LAW
Employment law
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAW
Question 1
Issue
Determining the breach of employee’s duties made by Harmish with reference to the scenario
At common law an employee is provided with various duties towards the employer and
workplace. Firstly it is the duty of the employee to be ready willing to do the job provided by the
employer. It is the legal duty of an employee to obey any reasonable and lawful instructions set
out by law or provided by the employer. The employee must also deploy competence and skill
towards their job. They also have the duty at common law to ensure the confidentiality of
business information. The employees also owe fiduciary duties towards the employers. There is a
duty of fidelity imposed on the employees according to which they must work in good faith
towards a proper purpose.
In the case of Ottoman Bank v Chakarian (1930) AC 277 it was ruled by the court that an
employee has to be obedient towards their job however the instructions provided by the
employer has to reasonable. In this case the employee fled as he was being transferred to a
dangerous place and thus was terminated. The claim for unfair dismissal was upheld by the
court.
In the case of Adami v Maison De Luxe (1924) 35 CLR 143 it was held by the court that
opening the dance floor on Saturday was a lawful order.
In the case of Lister v Romford Ice & Storage it was ruled by the court that it is the duty of an
employee to exercise competence, care and skill towards work. A failure to do so results in the
breach of employment contract and duty

2EMPLOYMENT LAW
In the given situation, Hamish owes a fiduciary duty towards Ed. This means he has the duty to
act in the best interest of Ed and secure his interest. However it has been provided through the
scenario that Harmish due to some personal problems at home is not doing his duties properly
which is not beneficial for Ed as per the Ottoman Bank v Chakarian case.
Harmish who is a trained trimmer was found to be yelling at the Dogs, cutting the coat shorter
than required, and being irresponsible towards the safety of the dogs that were found to be loose
in the backyard. These actions and omissions were not reported once but were committed
multiple times by Harmish. Therefore it can be stated that he has clearly breach the duty to act
with skill, competence and care towards his job as per Lister v Romford Ice & Storage.
The duty of fidelity to act in the best interest of the employer and not in a way which is contrary
to their interest have also been violated by Harmish as he was taking against the Ed and giving
the business a bad name. he was also leaking out confidential secrets about the business which is
a clealr breach of the duty of confidentiality as per Adami v Maison De Luxe
Conclusion
Therefore it is evident from the rules discussed above and the facts of the scenario that Harmish
has violated the above mentioned duties in relation to the employment contract.

3EMPLOYMENT LAW
Question 2
Issue
The issue in this case is to determine the steps which are required to lawfully terminate an
employee
Rules
According to section 387(a) of the Fair Work Act 2009 (Cth) the employer must have a valid
reason to terminate an employee which can result out if capacity or conduct.
A person is eligible for making a unfair dismissal claim if they have completed a minimum
employment period. In case the business employees less than 15 employees the Small Business
Fair Dismissal Code is applicable.
It is the duty of an employer to provide the employee with a reasonable notice of termination
both under the provisions of common law and the FWA.
In order to determine whether or not a notice is just and reasonable the circumstances when the
notice had been provided have to be considered rather than when their employment contract was
formed a provided in the case of Rankin v Marine Power International Pty Ltd (2001) 50
AILR 300.
Before giving the notice of termination the employer has to consider specific factors like nature
of Job, level of seniority and the length of services with respect to deciding the length of notice.

4EMPLOYMENT LAW
The employees have been provided with the right of making a claim within 21 days (394(2)) of
dismissal if they believe that they have been terminated unlawfully by the employer under
section 385 and 389 of the FWA.
The dismissal of an employee according to section 387 of the FWA therefore must not be
unreasonable, Unjust or harsh.
According to section 387 the availability of a valid reason is determined in case the dismissal is
related to conduct or capacity for the purpose of analyzing an unfair dismissal.
In the case of Selachandran v Petron Plastics Pty Ltd (1995) 62 IE 371 it had been ruled by
the court that a reason for dismissal is valid if it is “sound defensible or well founded”.
In order to determine whether a person is capable of doing the job or not the objective test is
applied as used in the case of Webb v RMIT University (2011) FWAFB 8336
According to Fair Work Regulations 2009 (Cth) Reg 1.07 summary dismissals may be
justified by serious misconduct which may include deliberate or willful behavior which is not in
accordance towards the contract of employment. There is imminent or serious risk caused by
such conducts to other along with the profitability, reputation and viability of the business. It is
the duty of the employer to notify the employee about the reason why such termination is
undertaken
Under the case of Stewart v Sea Change Conveyancing Pty Ltd (2012) FWA 1896 derogatory
remarks had been made by the employee about the employer, however the employee had been
terminated by email and not provided information before the termination thus it accounted to
unfair dismissal.

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It is also the duty of the employer to provide opportunity to employee towards justifying an
allegation if they are to be terminated on the basis of conduct or capacity as stated by Bi-lo v
Hopper
In the case of Barclay v Nylex Corp Pty Ltd (2003) 126 IR 294 where the employee had
allegedly slept during the working hours, it was held by the court that not giving opportunity to
justify is wrong on the part of the employer.
It is the duty of the employer to ensure that reasonable support is provided to the employee
towards bringing in a person to provide assistance to him in a meeting related to dismissal. The
requirement is although not mandatory in all situations but has to be offered by the employer to
the employee and also must not be denied in a reasonable manner.
It is also the duty of the employer to warn the employee about their performance before the step
of termination is taken where the reason for termination is in relation to unsatisfactory
performance. The warning can be provided to the employee through previous counseling or
informal or formal manner.
In the case of Allen v New Horizons Ent Ltd (2005) NWSIRC 1179 it had been ruled by the
court that the employee has to be provided with an opportunity to enhance performance along
with the evidence related to performance concerns.
The employer may be provided the right to immediately terminate employment in case it is
found that the employee has committed a serious breach in relation to the employment contract
as provided in the case of Anderson v Thiess (2014) FWC 6568.

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It is also the duty of an employer to have appropriate inquiry in relation to dismissing an
employee. The inquiry should be conducted in a fair basis by analyzing the facts, ensuring
confidentiality and interviewing witnesses.
It is important for employers to realize that procedural failures may account to unfair dismissal
even when the dismissal has been done for a valid reason as provided in the case of Kool V
Adecco Industrial (2016) FWA 925.
Application
In the given situation Ed has to be careful towards dismissing Harmish because any mistake on
the part of Ed can lead to an unfair dismissal. Ed has to know that even of the reason was valid,
procedural fairness has to be observed in order to terminate Harmish in a proper manner as per
Stewart v Sea Change Conveyancing Pty Ltd
Although Harmish can be dismissed immediately by Ed if he considers that Harmish has
conducted a serious breach it is advisable that Ed undertakes the normal procedure of dismissal
other than summary dismissal as on many instances the court decides whether the conduct was a
serious breach or not and may classify a dismissal as an unfair dismissal as per Anderson v
Thiess.
In the given situation Harmish has to follow certain steps in relation to terminating the
employment of Harmish in order to comply with the provisions of procedural fairness as per
Kool V Adecco Industrial (2016) FWA 925.
In the given situation the grounds on which Harmish can be terminated by Ed include,
unsatisfactory performance, Breach of fiduciary duties, spreading derogatory remarks for the

7EMPLOYMENT LAW
employer, endangering the safety of the dogs and subsequently posing a threat to the viability,
reputation and profitability of the business.
Firstly, it was the duty to Ed to notify in a formal or informal manner his performance towards
the business has is unsatisfactory. It relation to unsatisfactory performance in order to avoid risk
Ed has to provide opportunities to Harmish to enhance performance which have already been
provided by Ed.
It is the duty of Ed to notify Harmish in advance that he is going to be terminated by Ed and such
notice has to include the reasons why which Ed is considering the termination.
An competent inquiry has to be conducted by Ed into the matter in the manner as discussed
above and the same has to be notified to Hamish
Harmish has to be provided with an opportunity to justify his position and must also be allowing
to again assistance from third party for the purpose of the meeting related to the dismissal. Such
support cannot be denied by Ed or would not account to procedural fairness as per Allen v New
Horizons Ent Ltd (2005) NWSIRC 1179
It is also the duty of Ed to provide Harmish with a notice of termination. The length of the notice
has to be determined in accordance with the tenure of employment and the nature of work as
discussed above as per Barclay v Nylex Corp Pty Ltd
In addition although it has not been specifically provided through the circumstances, Ed must not
enter into any discriminatory practice base on Sex, religion, Race, disability or sexual orientation
or else it may result in an unfair dismissal.
Conclusion

8EMPLOYMENT LAW
Therefore for the purpose of terminating Harmish in a proper and fair manner the above steps
have to be observed by ED. In case such steps are not considered it may account to an unfair
dismissal where Harmish would have a right to make a claim in 21 days. Harmish would have a
right to make a claim for unfair dismissal even if there is a valid reason for dismissal but the
procedural fairness has not been observed.

9EMPLOYMENT LAW
References
Adami v Maison De Luxe (1924) 35 CLR 143
Allen v New Horizons Ent Ltd (2005) NWSIRC 1179
Anderson v Thiess (2014) FWC 6568.
Barclay v Nylex Corp Pty Ltd (2003) 126 IR 294
Fair Work Regulations 2009 (Cth)
Kool V Adecco Industrial (2016) FWA 925.
Lister v Romford Ice & Storage
Ottoman Bank v Chakarian (1930) AC 277
Rankin v Marine Power International Pty Ltd (2001) 50 AILR 300.
Selachandran v Petron Plastics Pty Ltd (1995) 62 IE 371
Stewart v Sea Change Conveyancing Pty Ltd (2012) FWA 1896
The Fair work Act 2009 (Cth)
Webb v RMIT University (2011) FWAFB 8336