Wrongful or Unfair Dismissal Flashcards
(41 cards)
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
