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4. Unfair Dismissal
- 1. Chapter 7 Unfair Dismissal, Discrimination & Harassment pp.209-219
- 2. Definition Unfair dismissal: where an employer dismisses an employee in circumstances the law defines to be unfair.
- 3. Changes over time 1994: UD laws introduced 1997: Laws changed to reflect ‘fair go all round’ concept 2006: More changes
- 4. No unfair dismissal laws until 1994 1994 – Federal and State Governments enacted laws that regulated the dismissal of employees Employers complained, arguing that the laws: Made it virtually impossible to dismiss unsatisfactory employees Were making unemployment worse because businesses were scared of taking on more staff in case they could not legally get rid of incompetent ones 1997 – ‘fair go all round’ introduced 2006 – UD laws limited to employers of more than 100 staff, extended maximum probation to 6 months (from 3)
- 5. Aspects of the law relating to unfair dismissal Three aspects of the law related to unfair dismissal: 1. Good reasons for dismissal 2. Proper notice 3. Procedural fairness
- 6. 1.Good reasons for dismissal Employers must have valid reasons for dismissing an employee These could include: Constantly being late for work Not competent to do the job Stealing Drunk/drugged
- 7. Courts have found that not telling an employer something relevant to whether the worker should be employed is also a valid reason for dismissal
- 8. Commissioner of Police v Hollingworth (1997) ALLR 90-578 An employee applied to be a police officer She did not tell the Police Department she had previously worked as a stripper and prostitute She was hired, but when the Department found out, she was dismissed She sued for unfair dismissal – but lost The court found she had been dishonest in concealing her past employment Her past conduct was deemed relevant to her position as a police officer She appealed to Supreme Court, which ordered she be reinstated and awarded compensation
- 9. Section 7, Anti-Discrimination Act 1991 Dismissal for any other reason is not prohibited by the law Is it fair, then, for someone to be dismissed because of their physical appearance?
- 10. In unfair dismissal cases, it is up to the employer to prove that the dismissal was fair How this is unusual? Usually, it is the complainant (plaintiff) that has to prove their case, not the defendant
- 11. Until recently, the law required that employer to prove two things: That there were valid reasons for the dismissal That no invalid reasons played a part in the dismissal. If they could not prove these things, they lost the case.
- 12. Stojanovic v The Commonwealth Club Ltd Facts: The assistant manager of a sporting club was pregnant and was called into the manager’s office to discuss possible arrangements during her leave. During the meeting, she became angry and swore at her boss. She was sacked. Issue: Was this legal dismissal? Verdict & Reason: The court found that in the circumstances, the employer could not prove the dismissal was a fair one. She was paid $8,500 compensation. The court considered the two factors stated on the previous slide. The said because the club could NOT prove the woman was NOT sacked because she was pregnant, they lost the case.
- 13. This makes for a difficult situation. How could an employer sack an incompetent employee who happened to be pregnant? Was the law creating a protected class of employees who employers were scared of sacking in case they were sued for unfair dismissal?
- 14. The law changed in 1997 Employers still have the onus of proof They need only prove that some valid reasons existed for the employee being dismissed They do not have to prove that there were no valid reasons
- 15. Tisdell v Woolworths Ltd; Morgan v Email Ltd (1997) The can find that a dismissal was harsh or unreasonable In the past employees have been sacked for smoking at work, in breach of express no smoking policies This was found to be unfair dismissal as it was a first time offence
- 16. Remember, the general rule is that dismissal can only be for valid reasons However, the law creates two exceptions to this general rule: If the prohibited reason affects the ability of the employee to do their job, it is legal to dismiss them for that reason If the employer is a religious institution conducted in accordance with the doctrines or teachings of a particular religion, the employer can dismiss the employee in good faith to preserve these beliefs
- 17. 2.Proper Notice In previous times, an employer was able to dismiss an employee without any notice It was seen that this was unfair and the law now protects most employees from being sacked on the spot
- 18. The notice that employees get depends on how long they have been working for the employer An extra week’s notice must be given if the employee is over 45, provided they have completed at least two years continuous service with the employer Employee’s length of continuous service with employer Minimum period of notice < 1 year 1 week 1-3 years 2 weeks 3-5 years 3 weeks > 5 years 4 weeks
- 19. The notice periods are only guaranteed minimum periods It is possible that an award/workplace agreement applying to an employee provides for longer periods of notice If you are not given the correct amount of notice you can sue for compensation
- 20. The law also says that in certain cases notice is not required This is when it would not be practical to give employees notice, due to reasons why they are being sacked The law says that if an employee is being sacked because of misconduct, notice need not be given Misconduct includes theft, assault or fraud
- 21. It is legal for an employer to give an employee wages instead of notice For example, an employee who has been working somewhere for 6 years and earns $500 per week could be given $2,000 ($500/week x 4 weeks) and ask the employee not to come back This might be because they are worried the employee might try to cause damage to the business in some way
- 22. 3.Procedural Fairness Originally, there were no laws setting out the procedures that had to be followed before an employee was dismiss In 1994 this changed so that the dismissal process had to be procedurally fair to the employee These procedures included that the employee: Had to be told of the reason for the proposed dismissal Had to be given a chance to dispute the reasons
- 23. Many people thought that if an employee wanted to legally dismiss an employee for incompetence, the employee would need to be given several warnings so that they could improve their performance The laws were being interpreted in favour of the employee The law was that if the employer missed even one of the steps laid down in the law regarding procedural fairness, they were in the wrong
- 24. Many now believed the law had gone to far in favour of the employee In 1997 the laws changed again To reflect the concept of ‘a fair go all round’ This meant that if a step was missed in the processes of being sacked, it wasn’t automatically classed as unfair It was still a consideration in deciding the case, but not a conclusive factor
- 25. 2006 – the introduction of WorkChoices made it tougher for employees to sue for unfair dismissal Employers of under 100 staff were exempt from unfair dismissal laws and the ma Maximum probationary period was changed from 3 to 6 months 2007 – this law was repealed when Kevin Rudd became Prime Minister (the first time, before Julia stabbed him in the back and then he stabbed her in the back in return…)
- 26. Recent example of unfair dismissal This was in America, but still…what do you think?