Wrongful or Unfair Dismissal Flashcards
Procedures for dealing with a complaint
Lodged with 21 days Payment of fee FWC are able to determine the eligibility of the application FWC can dismiss applications that are frivolous or vexatious and have no reasonable prospect of success Matter is attempted to be conciliated by FWC Failure moves onto determination by a member FWC makes a formal decision Appeal to a full bench is allowed
1993 Reforms
* Keating introduced first federal legislation * Employers had to show valid reason for termination * Amended: Excluded certain employees from claiming, and put cap on compensation
1996 Reforms
* Howard came to power and amended which barred claims against small business (100 or fewer)
Byrne v Australian Airlines
Wrongful dismissal may not terminate the contract, but it has the effect of bringing the relationship to an end
2009 Reforms
* FW Act removed most of the exclusions * Allow for three types of claim for termination * Part 3-1 - Discrimination and victimization (general protections - about protected rights) * Part 3-2 - Unfair dismissal (restricted to NSE) * Part 6-4 - Unlawful termination (all employees)
Australian Postal v Rashiti
Dismissed - Storing and sending porn after being warned
Cook v ACI Operations (2011)
Employee can pursue unfair dismissal AND discrimination complaint if it is pre-termination conduct
Cunningham v ABS (2005)
Cunningham was responsible for managing football tips within the workplace (not an actual employment duty). Alleged he had changed his tips so he could win. There was a valid reason because the employer was harmed by the conduct, because Cunningham was a senior management employee so carried a high degree of trust. Trust and honesty had eroded because of his conduct.
Curro v Beyond Productions
Injunction will be granted when the courts are satisfied the employee can find suitable work with another employer
De Francesco v Barnum (1890)
Courts do not want them to become contracts of slavery
NSW Cancer Council v Sarfaty (1992)
No claim can be made for incentives or bonuses that are entirely at the discretion of the employer
Exclusions to unfair dismissal claims
Earning over $133,000/yr Short term casuals Transferred between related entities Genuine redundancies Fixed term hires
Lodging Unlawful Termination
* s773-774 - 21 days to bring application * s775 - Payment of fee * s776 - Conference * s779 - Certification of unsuccessful efforts * s777 - Hearing * s772 - Civil remedies * Initially needs to be dealt with by mediation/conciliation * May go to arbitration if fails
Nulty v Blue Star (2011)
Ignorance of the right to pursue is not an excuse
Patterson v Middle Harbour Yacht Club
Mitigation of loss. Any income from another job will be accounted for and deducted from the claim.
Ponce v DJT Staff Management Services
Mr Ponce was a traffic controller. One period of about 7 months of employment (even though casuals). Had to establish employment was regular and systematic. FWC found that he was definitely a casual, no published roster, work was dependent on demand (contracts, weather, etc), had periods of not working. Other than that, there was a pattern showing he worked each week, averaging 4.6 days a week on night shift. Spoken to regularly about availability and that things needed to be planned in advance. Based on the facts he was able to show that employment was regular and systematic.
Reilly v Victoria
Only way to be reinstated is to show that mutual trust and confidence remains between the party and the employer is still satisfied about the conduct and competence of the employee
Reilly v Praxa (2004)
Bonuses and incentives are only counted if they would necessarily have been made
Remedies for Employees
Unfair Dismissal Claim (cost effective/efficient) Rarely get jobs back, compensation low Wrongful Dismissal (Common Law) Fixed term contracts or high earners
Remedies for Employers
* Modern awards permit employers to withhold money due on termination * Possible for a bond to be imposed * Injunctive relief: * Greater chance of success is an injunction * This allows the employer to take action to prevent an employee from using or disclosing confidential information
Remedies for Unlawful Termination
* FWC may order * Re-instatement; or * Uncapped compensation * s778 - Parties can go to court * s779A - Cost orders
Remedies: Unfair Dismissal
* s390 - Employer may be ordered to reinstate the employee or pay compensation * Reinstatement - Position previously held, or position no less favorable * s391 - Compensate for pay lost between dismissal and reinstatement
Road Transport v Gervasoni
Dismissed - Disabled limited and speeding
s382
* National system employees are protected from unfair dismissal * Must have completed the minimum period * 6 months for normal business * 12 months for small business * Employee must be covered by an award or enterprise agreement
s385
Considered unfair if dismissal was harsh, unjust or unreasonable * FWC must take into account * Valid reason for the dismissal * Notice of reason provided * Opportunity to respond * Receipt of any warnings * Allowance of support person present * Size of the business
s386(2)
No dismissal when employee is engaged for a specified period, task, season
s587
FWC can dismiss applications that are frivolous or vexatious and have no reasonable prospect of success
s725
Prevent multiple applications regarding a dismissal (including general protection claim)
s772
Prohibits employees form being termination for proscribed reasons * Temporary absence (illness or injury related) * Union membership/non-membership * Seeking or acting as a representative of employees * Alleging employer has violated laws/regulations * Discrimination (age, race, sex) * Taking parental leave
s783
Onus: Employer must prove employee was not dismissed for proscribed reason
Sprigg v Pauls Festival Supermarket
Compensation for unfair dismissal. Anything that would have received, “but for” the dismissal.
Summary Termination
On the spot termination. Account of breach/repudiation
Tradition Australia v Gunson (2006)
* Courts are reluctant to order specific performance * Reluctant because it would require constant supervision
Unfair Dismissal
Harsh, unjust or unreasonable termination.
University of WA v NTEU (2003)
No dismissal where employment contract is frustrated
Unlawful Termination
Termination that is discriminatory. * Based on external affairs power (beyond constitutional corporation criteria)
Why Reinstatement is Difficult
- Difficult to keep employment contract alive during court proceedings 2. Courts will not make orders of specific performance
Wodonga Rural City Council v Lewis
Possible for employer to seek a cost order against an applicant for pursuing an untenable claim
Woolworths v Brown
Mr Brown was a butcher who had been told to remove an eye brow ring. He refused a number of warnings which related to company hygiene policies. Determined there was a valid reason for dismissing Mr Brown.
Wrongful Dismissal
Claim for breach of contract. Allegation that an employer has terminated without having the power to do so.
Wrongful Dismissal: Damages
* Damages are meant to put the injured party in the same position as if the contract had been carried out * Therefore, employee can claim for * Loss of wages * Loss of superannuation * Expenses in taking up a new job
