Workplace Law: Termination and Fair Dismissal of Employees

This report examines key aspects of Australian workplace law, addressing employer, employee, and manufacturer duties concerning health and safety, as defined by the Occupational Health and Safety Act of 1984. It outlines the responsibilities of each party, including providing training, protective ...Read More

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

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i. The Occupational Health and Safety Act of 1984 determines the duties of an
employer and employee.
Employer’s duty:
 The employer has to provide requisite health and safety information and adequate
training to the employee,
 Distribute the roles and responsibilities to the employers depending upon their skill,
 Provide requisite protective gear and equipment for the work,
 Take the opinion of the staff regarding workplace safety,
 Maintain a register to make an entry of all workplace injuries,
 Offer adequate damages to every worker who might face physical or mental injury
while working.
 Furthermore, an employer has to use adequate signs and labels in order to convey the
message regarding the required health and safety standard of equipment (Hardy,
2017).
Employee’s duty:
 The employee also has a duty of care to ensure the health and safety standard of a
workplace, such are;
 Work with attention to ensure own safety;
 Does not get involved with any act which might cause injury to the others;
 follow the instruction of the employer regarding health and safety guidelines and ask
for guidance; in case such instructions are not clear, ( Howe & Hardy, 2017).
 Employer is vicariously liable for act of the employee. (Sweeney -v- Boylan
Nominees Pty Limited)

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 Employers are in some cases liable for the act of independent contractor applying the
broad control test (Zujis v Wirth Bros)
 Follow guiding rules for wearing any safety equipment and take reasonable care of
the same, (Walpole, 2015).
 Report about incidents regarding an injury at the workplace to the employer and assist
them regarding the same.
Manufacturer duty:
The manufacturer has to provide defect-free products and also to ensure the quality of the
product they are producing. The strict liability of the manufacturer is not to make any good
which can cause loss or injury to the consumer's life and health (Armstrong, 2017)
Manager of a workplace:
The manager of a workplace is responsible for designing adequate unit planning and health
safety planning monitoring over the same as a supervisor to ensure that each person in the
company is following the WHS guidelines (Nwabueze, 2019).
The factors that are responsible to determine employer-employee relationships are
supervision of the employer or degree of control considering the ‘multi factor test’ over the
work of an employee. In the case of Stevens v. Brodribb Sawmilling, the court held that the
factors other than degree of control which determines employer employee relationship are,
the form of remuneration, the condition and maintenance of equipment, the compulsion to
work, the provision for holidays, the deduction of tax and the delegation of work, integration
of the service of the worker in the business of the employee, employer is providing the
employee with adequate materials requiring to ensure the safety of the worker, employer right
to take disciplinary action against the employee and terminate and so on. In the case of Hollis
v Vabu Pty Ltd, it has been held that application of MFT is not extensive.

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ii. Under the Fair Work Ombudsmen rule, an employer has every right to suspend an
employee on the fulfillment of requisites like having a valid reason for such termination
(NSW Cancer Council v Sarfaty) In addition to this, requires to give requisite notice to the
employee mentioning about his or her suspension, is fulfilled (Quinn v Jack Chia). The
employee is also required to give monetary compensation which the employee is liable in
place of his employment (Hardy & Howe, 2017). The reason for the suspension of an
employee's contract is as follows;
 If the employee is engaged in grave ethical misconduct such as dishonest dealing with
the rival companies,
 If the employee is engaged in employee theft,
 If the employee has breached any of the fiduciary duty as which he or she owes to the
employer,
 If the employee has committed any sexual misconduct which is grossly against the
business ethics on following by the company,
 If the employee did not take adequate measures regarding his work safety,
 If the employee was previously also being warned about his or her misconducts but
did not take rectify the same,
 If the employee has any other legal case pending in any court of law like a criminal
proceeding,
 If the employer is about to end his business for which the employee is working for or
become insolvent or bankrupt, then the employer can dismiss the employee on the
ground of redundancy,
 If the employee is failed to provide adequate quality for the work he or she is doing.

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Question 1:
Issue:
The issue, in this case, is whether the termination of Mickey and another employee of the
Brown company by its board in the new operational management of the company violates the
rule of fair dismissal of an employee or not. Another issue was whether the board is going to
get success in the suit instituted by the dismissed employees in the court of law.
Rule:
The rule relating to termination of an employee from his or her work is guided by the Fair
work Act, Unfair dismissal Act, and Fair ombudsmen. According to the guidelines of this
Acts, an employer needs to have a proper valid reason to terminate an employee and also
needs to provide an adequate notice period to the employee regarding such termination.
Analysis:
a) In the present case, Brown's resources company board terminated Mickey and other
employees who were in the General Manager's position. However, the Board is
required to give each this employee adequate notice, irrespective of the fact that their
designation had been changed before their termination due to the operation changes in
the company (Walsh& Walsh, 2019). According to the Fair Work Act, an employer is
required to give an employee a notice between 1- 5 weeks depending on age & length
of service before the termination of his or her employment. Furthermore, the company
is liable to pay to the employee all annual payment regarding their employment (Ross,
2016).
In the second scenario, the Company due to the fact of expansion of business
introduced some operational changes in the designation of the employee by which Mickey

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and other persons who used to owe the position of general managers for the company has
been offered with a new position such as Senior Department Administrator. According to the
fact of the case, it can be seen that Mickey and other managers thought that if they accept the
new position, it will result in decreasing their authority in the company. Therefore, they did
not accept the same. The Board of the company then dismissed all of them by giving notice.
b) It can be said that, according to the fair work ombudsman, a company can change the
position or designation of an employee under the rule of redundancy and terminate the
employee on such ground. Before doing the same an employer needs to comply with
few provisions such as the employer is required to discuss with the employee about
the operational change of the company and address to the employee his new position.
Furthermore, an employee needs to be offered a similar beneficial position to the
employee in the new arrangement. In the present case, it can be seen that the Brown
company discussed and elaborated on the reason for operational changes with Mickey
and others and offer them the same similar position which they have rejected.
Therefore, it can be said that termination of such employee under the rule of
redundancy is appropriate as it fulfills requisites for termination under such rule.
According to the rule, if an employer wants to terminate an employee based on the
rule of redundancy by stating operational changes, they need to endure that the
position on which the employee was working is ceased to exist in the company
(O’Rourke et al, 2018). In the present case, the Brown Company completely
dismissed the designation of General Manager from their positional hierarchy. In
another case of Amcor v Construction, Forestry, Mining and Energy Unio , the court
held that, benefits can be claimed from the existing employment contracts on
termination irrespective of the fact that whether in the new arrangement there was a
place for the employment of the terminated employee or not. Furthermore, it can be

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said that they are liable to give payment to Mickey and others according to the
previous employment contract on their termination, irrespective of the fact that the
company has offered an alternative but similar position to the entire dismissed
employees in the new arrangement which they have rejected (Nadolny & Ryan,
2015). Therefore, if not otherwise challengeable but the employer have to give
compensation to Mickey for such scenarios as mentioned under the previous contract
of employment.
Conclusion:
Therefore, it can be concluded from the above-mentioned fact, that the termination of
the Mickey and other employees by the board of the Brown company is valid but the
employees are liable to get any damages according to old contract of employment at the time
of termination,

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Reference:
Amcor v Construction, Forestry, Mining and Energy Union [2005] HCA 10
Armstrong, K. (2017). Nigh-Impenetrable: Firearm Manufacturer Liability under the
Protection of Lawful Commerce in Arms Act in a Post-Heller World. Geo. Mason
UCRLJ, 28, 173.
Hardy, T. (2017). Good call: Extending liability for employment contraventions beyond the
direct employer. NEW DIRECTIONS, 71.
Hardy, T., & Howe, J. (2017). Creating Ripples, Making Waves: Assessing the General
Deterrence Effects of Enforcement Activities of the Fair Work Ombudsman. Sydney
L. Rev., 39, 471.
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Howe, J., & Hardy, T. (2017). Business responses to Fair Work Ombudsman compliance
activities. Research Report, Centre for Employment and Labour Relations Law,
Melbourne Law School, January.
Nadolny, A., & Ryan, S. (2015). McUniversities revisited: a comparison of university and
McDonald's casual employee experiences in Australia. Studies in Higher Education,
40(1), 142-157.
NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 77A-B

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Nwabueze, C. J. (2019). Social media, online communications, and defamation in the
workplace: a puzzle for liabilities?. South African Intellectual Property Law Journal,
7(1), 116-142.
O’Rourke, A., Pyman, A., Teicher, J., & Van Gramberg, B. (2018). Old wine in new bottles?
Regulating employee social media use through termination of employment law: A
comparative analysis. Common-Law World Review, 47(4), 248-271.
Quinn v Jack Chia (1992) SUPREME COURT OF VICTORIA ASHLEY J 5-8, 15 August
1991 [1992] 1 VR 567
Ross, A. (2016). Termination gets personal: Employee circumstances can make dismissal
unfair. Proctor, The, 36(2), 30.
Stevens v Brodribb Sawmilling Co Pty Ltd. [1986] HCA 1
Sweeney -v- Boylan Nominees Pty Limited [2006] HCA 19
Walpole, K. (2015). The Fair Work Act: Encouraging collective agreement-making but
leaving collective bargaining to choice. Labour & Industry: a journal of the social and
economic relations of work, 25(3), 205-218.
Walsh, P., & Walsh, T. (2019). Folau v Rugby Australia: Protecting a business' brand in the
age of social media. Bulletin (Law Society of South Australia), 41(6), 12.
Zuijs v Wirth Bros (1955) 93 CLR 561