Analysis of Unfair Dismissal and Employer Duties Under Australian Law

This report provides an overview of Australian Labor Law, focusing on unfair dismissal and employer duties in New South Wales. It details the legal framework governing unfair dismissal claims, including eligibility, procedures, and the powers of the Fair Work Commissioner. The report outlines employer obligations related to workplace safety, health, and workers' compensation, emphasizing the importance of providing a safe and supportive environment for employees. It also covers minimum working conditions and employee rights under the Fair Work Act 2009 (Cth), including maximum working hours, flexible working arrangements, and termination notice requirements. Furthermore, it discusses employee duties and responsibilities within an organization, such as compliance with policies and procedures. This document contributed by a student is available on Desklib, a platform offering study tools and resources for students.

Running head: AUSTRALIAN LABOR LAW
Australian Labor Law
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Table of Contents
Unfair Dismissal..............................................................................................................................3
Unfair Dismissal NSW laws............................................................................................................3
How to lodge the unfair dismissal claims........................................................................................4
Online lodgment of claims...........................................................................................................5
Procedure followed after lodging claims.........................................................................................5
Who cannot file a dismissal claim?.................................................................................................5
Power of Commissioner..................................................................................................................6
Employer Duties in NSW................................................................................................................7
State legislation on Responsibilities of employers......................................................................7
Obligations of Employers................................................................................................................7
Definition.....................................................................................................................................8
Legal requirements of employer NSW............................................................................................8
Workplace safety and Health...........................................................................................................9
Workers Compensation.................................................................................................................10
Minimum conditions and other obligations of employers NSW...................................................10
Employees duties NSW.................................................................................................................12
Compensation Payments................................................................................................................12
What is PCBU................................................................................................................................13
Employee duties towards co-workers............................................................................................14

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Unfair Dismissal
By ABC
In New South Wales, the Fair Work Commission deals with cases related to unfair dismissal
under Rule 45 and Section 39 of the Fair Work Act. Unfair dismissal under NSW laws, the
termination of an employee is considered as ‘unfair’ if it was:
a) not a genuine redundancy;
b) unjust harsh or unreasonable, or
c) inconsistent with the Small Business Fair Dismissal Code (for employees engaged in
small businesses);
Unfair Dismissal NSW laws
The employees are governed by the national workplace relation systems that are administered by
the Federal Government of the country. The Fair Work Commission determines all the claims
related to unfair dismissal. The circumstances under which an employee is entitled to lodge
claims related to unfair dismissal are as follows:
a) employer did not settle the entitlement due;
b) employer did not abide by the appropriate procedures while terminating the employee, or
c) the employer denied the rights of the employees;
The local government employees and the State public sector employees are represented by the
NSW industrial relations systems and they are also entitled to lodge any claims pertaining to

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unfair dismissal provided they are covered by enterprise agreement or state industrial award or
they either earn more than $138,900 or are award-free. If an employee believes that he has been
unfairly dismissed from his or her employment, such employee is entitled to lodge dismissal
claim before the NSW Industrial Relations Commission.
How to lodge the unfair dismissal claims
When an employee is terminated and is determined to lodge an unfair dismissal claim is
permitted to do so within 21 days from the time such employee has been dismissed and have
become entitled to lodge such claim.
If the claim is not lodged within the stipulated time, the Commissioner may be legally barred to
deal with the claim unless exceptional circumstances are established before the Commission.
The deadline given of 21 day related to the date when the dismissal ‘becomes effective’ that is,
the day when the employment is actually ceases:
 some employees are dismissed with a notice period to serve like 2 weeks, one month
during which they have to continue working with the company. Their employment
ceases after the completion of the notice period;
 some employees are terminated and are not served with any notice period which implies
that their employment ceases on the day of termination;
 some employees are not required to serve their notice period instead they receive
payment in lieu of such notice period. The dismissal of such employees becomes
effective on the day they complete working at their workplace;

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In other words, the dismissal of an employee takes effect on the day such employee ceases to
attend their workplace irrespective of any notice period and the 21-day deadline commences
from that very day.
For any further information relating the after lodgment process, the Fair Work Commission site
contains detailed information regarding the types of forms to be completed. The claims against
unfair dismissal can also be lodged online.
Online lodgment of claims
The ‘Form F2’ must be used while the lodging application is made through email, post or fax. If
such application is submitted in person, the same should be submitted at the NSW Commission’s
office.
The Online Lodgment Service uses SmartForm for lodging unfair dismissal claims and there is
no need to attach the application form separately along with this online lodgment process.
Procedure followed after lodging claims
After the claims for unfair dismissal is lodged, the employer is provided with a letter that
mentions the stipulated time to respond. The Fair Work Commissioner shall invite both the
employee and the employer to take part in a conciliation process over telephone and such process
is conducted by the Commissioner. If such conciliation process, the matter may be dealt with in
conference or at a hearing.
Who cannot file a dismissal claim?
The following individuals shall be barred from lodging unfair dismissal claims:

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 employees who are involved in private sector and have been dismissed after 1 January,
2010;
 the independent contractors of a company;
 the trainees or employee of an organization;
 the employees who are casual employees;
 the employees who are on a probation period for three month provided they are
determined in advance;
 employees who are engaged as an employment for any particular task under an
employment contract;
 employees who are employed within an organization for any particular period that is less
than six months as per the employment contract;
The trainees and Apprentices may contact the Apprenticeships & Traineeships Helpline on 122
588 for further information regarding the termination of their apprenticeship and training.
Power of Commissioner
The employer may be ordered to:
 re-employ the dismissed employee in another position;
 reinstate the dismissed employee to their previous position;
 provide the employee with entitlements owed to him/her since the time of dismissal;
 provide compensation to the dismissed employee not more than the remuneration of the
employee during the six months from the date of dismissal;

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Employer Duties in NSW
Several legislative provisions are enforced across the Australian states to make sure that the
employers perform their legal obligations to ensure safety and health of employees so far it is
reasonably practicable.
State legislation on Responsibilities of employers
The NSW Industrial Relations (NSW IR) governs the obligations of the employers and
employees with the objective to attain equitable, productive and fair productive workplaces.
NSW IR monitors and advises on initiatives and development relating to workplace relations and
supports the NSW government by taking part in the national workplace relations system.
From January 1, 2010, the private sector employers and employees are governed by the Federal
Industrial Relations scheme- the Fair Work Act 2009 (Cth).
Obligations of Employers
The following are the obligations performed by employers in New South Wales:
 The employers are required to endow the employees with appropriate assistance and
support especially when employees suffer from medical condition or any non-work
related illness or injuries;
 The employers are obligated to ensure that any worker who sustained injuries are able to
resume their jobs as soon as possible. They are also entitled to ensure that employees
suffering from any form of illness or injuries are not subjected to any harassment or
workplace bullying.

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 The employers mist ensure that the employees suffering from any illness or bodily injury
are treated with care and are not subjected to any form of unfair treatment;
 The employers must ensure that the position of the employees suffering from any illness
or injuries are kept open;
 The employers must consider requests of the employees to return early to work and
provide them with all necessary assistance, to the extent it is reasonably practicable;
 Despite all the necessary assistance provided to the employees, if they fail to carry out
their primary duties, it is not expected from the employers that they would keep the
position of such employees open and continue with making adjustments resulting in
hardships that is completely unjustified;
Definition
An injured employee refers to an employee who is suffering from any form of permanent or
temporary disability of physical nature.
A non-work illness or injury from which an employees is suffering may be defined as an injury
or illness that did not result from the course of employment of such workers.
Legal requirements of employer NSW
 The employers must pay appropriate wages to the employees;
 The employers must reimburse the employees for all the work-related expenses;
 The employers are prohibited from discriminating against the employees due to any
injury sustained or illness suffered by such employees including a non-work injury or
illness;

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 The employers are entitled to take reasonable measures for eliminating sexual
harassment, discrimination and victimization as far as possible under state and national
employment opportunity and anti-discrimination laws in the workplace;
 In case of discrimination amongst the employees, the employers shall be held liable for
such discrimination on the grounds of race, religion, caste, sex, nationality, origin, injury
or illness;
 The employers must ensure that the employees are not subjected to unfair treatment;
 The employers must refrain from acting in a manner that might cause damage to the trust
and confidence of the employee and affects the relationship existing between the
employer and the employee;
In regards to the information related to eh obligation of the employer to forward PAYG tax
installments to the Australian Taxation Office (ATO) and making of appropriate payment
under the Superannuation Guarantee legislation, go through the Taxation and Your
employees page for further detailed information.
Workplace safety and Health
An employer is obligated to ensure that workplace is healthy ad safe for the workers, contractors
and volunteers to carry out their responsibilities. The Occupational Health and Safety Act NSW
obligate the employers to ensure safety, welfare and health of the employees by:
a) ensuring safe use and handling of equipments;
b) maintaining safe and secure facilities within the workplace;
c) providing the employees or trainees with proper and necessary information;

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d) endowing the employees with adequate skills and training and supervision techniques
related to their respective roles;
Workers Compensation
Majority of the employers are required to maintain workers compensation insurance to
compensate workers who suffer work related injuries or illness. Workers compensation insurance
includes injuries that are suffered by independent contractors but volunteers. Therefore,
volunteers must inquire if their organization has separate volunteer insurance policy.
In case any employees sustain injuries at workplace may be entitled to weekly payments, lump
sum payments if employee suffers from permanent disability. A workers compensation claim
should be made within 6 months from the date of injury sustained. After the employer informs
the insurer of the injury, the employees usually receive provisional liability payments within 7
days after the insurer investigates the facts related to injury.
If an employer is uninsured, an injured worker has a right to claim under the indemnity scheme
and receive payment from WorkCover NSW.
Minimum conditions and other obligations of employers NSW
The Fair Work Act 2009 (Cth) includes National Employment Standards (NES) that sets out ten
entitlements with respect to minimum working conditions. Accordingly, the employers must
perform the following obligations:
 the employers must provide maximum weekly hours of work that is reasonable overtime
beyond 38 hours;
 the employers must consider requests for flexible working arrangements;

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 parental leave and relevant entitlements should be considered;
 the employers must ensure that termination notice of 4 weeks at least is provided to the
employees;
 the employers must ensure that the provisions of the Fair Work Information Statement
are provided to all the new employees of an organization;
Any further information regarding these topics can be retrieved from government websites: Fair
Work Australia, Fair Work Ombudsman, NSW Industrial Relations and WorkCover NSW.

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Employees duties NSW
The employees of an organization must ensure:
 they carry out their designated responsibilities within the organizations;
 they are required to exercise due diligence while carrying out their responsibilities;
 they are obligated to comply with the policies and procedures of the organizations such as
Anti-discrimination policies, Prevention of bullying and harassment within the workplace
on the grounds of race, color, sex, origin, nationality, injury or disability;
 the employees must ensure health and safe working environment within an organization;
In case there is an existence of code of practice or any employment regulations, the workers are
obligated to ensure that:
 they follow the methods or procedures stipulated in the Code or Regulation;
 they undertake reasonable precautionary measures while abiding by such principles or
methods;
 they exercise due care and diligence while carrying out their respective roles and
responsibilities;
 the employees are not only responsible to ensure a healthy and safe working environment
but are also responsible for ensuring their own safety and health and that of their
colleagues;
 they must ensure compliance with any reasonable policies, procedures and instructions
that are provided by the employers or controller of such workplace;

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Compensation Payments
The compensation payments fall into two categories:
Medical expenses- the employees are entitled to medical expenses that are incurred due to injury
caused in the course of employment;
Weekly Payments- the employees are entitled to compensation on a weekly basis for the income
that they lost due to the injury sustained in the course of employment;
In NSW, the Workers Compensation Act 1987 [NSW], Workplace Injury Management and
Workers Compensation Act 1998 [NSW], Workers Compensation Regulations 2003 [NSW] are
the legislations that govern the Injury Management System and Workers Compensation in NSW.
What is PCBU
PCBU stands for ‘a person conducting a business or undertaking’ refers to a statutory legal term
under the Workplace Health and Safety laws for businesses, organizations or individuals that are
involved in business undertakings. Any person who works for such PCBU is referred to as a
worker.
The workers are obligated to perform the following responsibilities:
 ensure safe use and handling of equipments, machineries;
 ensure that they have adequate information and training with respect to their respect field
of expertise delegated to them within the workplace;
 ensure compliance with requirements stipulated under the Work Health and Safety
Regulation;
 ensure that the working environment is safe and healthy;

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Employee duties towards co-workers
The employees within an organization not only have responsibilities towards the organization but
also towards their co-workers. The primary duties that the workers owe towards each other
include:
 duty of care ensuring that their individual conduct do not cause damage to the other
workers;
 influence or direct the workers to carry out their respective responsibilities within the
organizations;
 encourage and provide assistance to each other while carrying out their organizational
activities;
 ensure health as well as safety of another person is not likely at risk from the work
carried on by one worker within the organization;
 the employees must ensure that they do not adopt discriminatory practices or prevent any
discriminatory conduct against any workers, especially, those who are suffering from
injuries or illness both work related or non-work related;
The provisions stipulated under the WHS Act 2011 and the Fair Work Act 2009 [Cth] should be
abided by in order to ensure a healthy and safe workplace. Such provisions are essential for both
the employers and the employees in order to achieve fair, reasonable and equitable working
conditions within any organization.
Any further information regarding these topics can be retrieved from government websites: Fair
Work Australia, Fair Work Ombudsman, NSW Industrial Relations and WorkCover NSW.

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