Wrongful or Unfair Dismissal

Question 1

Procedures for dealing with a complaint

Answer 1

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

Question 2

1993 Reforms

Answer 2

* Keating introduced first federal legislation * Employers had to show valid reason for termination * Amended: Excluded certain employees from claiming, and put cap on compensation

Question 2

1996 Reforms

Answer 2

* Howard came to power and amended which barred claims against small business (100 or fewer)

Question 3

Byrne v Australian Airlines

Answer 3

Wrongful dismissal may not terminate the contract, but it has the effect of bringing the relationship to an end

Question 3

2009 Reforms

Answer 3

* 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)

Question 3

Australian Postal v Rashiti

Answer 3

Dismissed - Storing and sending porn after being warned

Question 4

Cook v ACI Operations (2011)

Answer 4

Employee can pursue unfair dismissal AND discrimination complaint if it is pre-termination conduct

Question 5

Cunningham v ABS (2005)

Answer 5

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.

Question 7

Curro v Beyond Productions

Answer 7

Injunction will be granted when the courts are satisfied the employee can find suitable work with another employer

Question 9

De Francesco v Barnum (1890)

Answer 9

Courts do not want them to become contracts of slavery

Question 10

NSW Cancer Council v Sarfaty (1992)

Answer 10

No claim can be made for incentives or bonuses that are entirely at the discretion of the employer

Question 10

Exclusions to unfair dismissal claims

Answer 10

Earning over $133,000/yr Short term casuals Transferred between related entities Genuine redundancies Fixed term hires

Question 10

Lodging Unlawful Termination

Answer 10

* 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

Question 11

Nulty v Blue Star (2011)

Answer 11

Ignorance of the right to pursue is not an excuse

Question 13

Patterson v Middle Harbour Yacht Club

Answer 13

Mitigation of loss. Any income from another job will be accounted for and deducted from the claim.

Question 14

Ponce v DJT Staff Management Services

Answer 14

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.

Question 16

Reilly v Victoria

Answer 16

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

Question 16

Reilly v Praxa (2004)

Answer 16

Bonuses and incentives are only counted if they would necessarily have been made

Question 17

Remedies for Employees

Answer 17

Unfair Dismissal Claim (cost effective/efficient) Rarely get jobs back, compensation low Wrongful Dismissal (Common Law) Fixed term contracts or high earners

Question 18

Remedies for Employers

Answer 18

* 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

Question 19

Remedies for Unlawful Termination

Answer 19

* FWC may order * Re-instatement; or * Uncapped compensation * s778 - Parties can go to court * s779A - Cost orders

Question 20

Remedies: Unfair Dismissal

Answer 20

* 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

Question 21

Road Transport v Gervasoni

Answer 21

Dismissed - Disabled limited and speeding

Question 22

s382

Answer 22

* 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

Question 23

s385

Answer 23

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

Question 25

s386(2)

Answer 25

No dismissal when employee is engaged for a specified period, task, season

Question 26

s587

Answer 26

FWC can dismiss applications that are frivolous or vexatious and have no reasonable prospect of success

Question 27

s725

Answer 27

Prevent multiple applications regarding a dismissal (including general protection claim)

Question 28

s772

Answer 28

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

Question 29

s783

Answer 29

Onus: Employer must prove employee was not dismissed for proscribed reason

Question 30

Sprigg v Pauls Festival Supermarket

Answer 30

Compensation for unfair dismissal. Anything that would have received, “but for” the dismissal.

Question 31

Summary Termination

Answer 31

On the spot termination. Account of breach/repudiation

Question 32

Tradition Australia v Gunson (2006)

Answer 32

* Courts are reluctant to order specific performance * Reluctant because it would require constant supervision

Question 33

Unfair Dismissal

Answer 33

Harsh, unjust or unreasonable termination.

Question 35

University of WA v NTEU (2003)

Answer 35

No dismissal where employment contract is frustrated

Question 36

Unlawful Termination

Answer 36

Termination that is discriminatory. * Based on external affairs power (beyond constitutional corporation criteria)

Question 37

Why Reinstatement is Difficult

Answer 37

1. Difficult to keep employment contract alive during court proceedings 2. Courts will not make orders of specific performance

Question 38

Wodonga Rural City Council v Lewis

Answer 38

Possible for employer to seek a cost order against an applicant for pursuing an untenable claim

Question 39

Woolworths v Brown

Answer 39

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.

Question 40

Wrongful Dismissal

Answer 40

Claim for breach of contract. Allegation that an employer has terminated without having the power to do so.

Question 41

Wrongful Dismissal: Damages

Answer 41

* 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