workplace law assignment
yolac
Slides-StatutoryJobProtections.pptxBSL202 Workplace Law
Statutory Job Protections
Statutory job protections
Unfair dismissal protects employees from harsh, unjust OR unreasonable dismissal
Unlawful termination prohibits termination based on discriminatory and other specified grounds
Adverse action prohibits dismissal and other employer actions involving an abuse of workplace rights
Anti-discrimination and bullying are also prohibited in employment contexts
Unfair dismissal system
The Fair Work Act 2009 (Cth.) provisions apply
to national system employees
whose employment has been terminated by the employer
Some employees are not eligible to apply
National system employees
National system employees are those employed by a national system employer
All employees of constitutional corporations
Cth. government employees
Constitutional trade & commerce employees
Employees employed in referring states
State unfair dismissal legislation applies to other employees in WA, e.g. employees of sole traders
Fair Work Commission
Claims are dealt with by FWC
FWC can deal with matters of fact with or without a hearing
Private conferences, usually by phone, & with conciliators
Can be at premises of employer
Inquisitorial manner of information collection
Appeal possible when
Public interest
Significant error of fact
Unfair dismissal claims
The dismissal was harsh, unjust or unreasonable &
the dismissal was not consistent with the Small Business Fair Dismissal Code (applies to small businesses with less than 15 employees) &
the dismissal was not a case of genuine redundancy
Small Business Code
Small business only (less than 15)
Steps required to ensure dismissal is fair
Presumption there is no HRM staff
Reasonable grounds basis for serious misconduct allegation - report to police or authority if suitable
E.g. Erskine v Steri-flow [2013]
Genuine redundancy
The employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the enterprise &
the employer has complied with a modern award or enterprise agreement obligation that required consultation about the redundancy &
it was not reasonable to redeploy
E.g. Ulan Coal Mine v Honeysett [2010]
Unfair dismissal prerequisites
Minimum employment period (6 months or 12 months if small business employer) OR
Earns below high income threshold (currently A$142000) OR
Covered by an award or enterprise agreement
AND
Application within 21 days of dismissal
Employer initiative
Dismissal must be at the employer’s initiative
Mohazab v Dick Smith (1995)
O’Meara v Stanley Works (2006)
OR resignation when forced because of conduct by employer (constructive dismissal)
Not at employer’s initiative IF
A fixed term/specified task employee & contract completed
Unless substantial purpose was for employer to avoid dismissal obligations
A casual
A trainee & term completed
A demoted employee &
No significant reduction in duties or pay AND
employment has not ended
BUT casual employees
Casual employees can apply if they have served the minimum period of employment &
employment was on a regular & systematic basis &
during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular & systematic basis
Factors determining harshness
Valid reason related to capacity or conduct of employee
Selvachandran v Peteron Plastics (1995)
Employee notified of reason
Employee given an opportunity to respond to allegation
Byrne v Australian Airlines (1995)
Unreasonable refusal to have support person present
Factors determining harshness
If termination re unsatisfactory performance, was warning given
Whether size of employer was likely to impact on procedures used by employer
Degree absence of HR specialists or expertise would impact on procedures used
Any other matters FWC thinks relevant
E.g. Toms v Harbour City Ferries [2015]
E.g. Moitzi v Paradise Motor Homes [2015]
Remedies
Remedies are discretionary
In determining whether or not to grant a remedy FWC must consider all the circumstances of the case including:
Effect on the viability of the employer’s business
Length of service
Remuneration otherwise earned
Remuneration likely to be earned
Efforts of employee to mitigate loss
Any other relevant matter
Reinstatement/Compensation
FWC may order reinstatement, or payment of compensation, e.g. Blackadder v Ramsay Butchering (2005)
Primary remedy, if appropriate, is reinstatement
Compensation may be payable in addition to or in lieu of reinstatement: 26 weeks pay or 6 months threshold cap on compensation, whichever is lesser; misconduct reduces amount and there are no shock, distress, or humiliation payments
General protections
Adverse action taken by an employer (including dismissal, but also demotion, non-promotion and other disadvantage)
The adverse action must be taken in relation to a workplace right of the employee
It will attract penalties issuable by the Federal Circuit Court
Reverse onus once case made out (employer to disprove)
General protections application
Not just National System Employers and Employees
Others, including independent contractors and prospective employees, are also covered if there is an impact on a ‘constitutionally covered entity’
General protections cases
Elwin v Edwards Motors [2015]
CFMEU v BHP Coal [2014]
Bendigo TAFE v Barclay [2012]
CFMEU v Endeavour Coal [2015]
Unlawful termination
Unlawful termination is available to all employees, even fixed term and new employees
Employer must not terminate because of:
Temporary absence from work due to illness or injury
Membership or non membership of a Trade Union
Discrimination on grounds of race, sex, age etc
21 days to apply
Conciliation by FWC & if unresolved to Federal Circuit Court (Fair Work Division)
Prohibited reasons and exceptions
Prohibited reasons include:
Union membership
Discrimination
Absence form work during maternity leave
Temporary absence due to illness or injury
Exceptions include:
Inherent requirements
Staff of religious institution
Discrimination in employment
Both State (Equal Opportunity Act 1984 (WA)) and federal legislation (e.g. Race Discrimination Act 1975 (Cth.)) have prohibitions.
Various specified grounds are prohibited (e.g. sexual harassment, racial, age, disability, victimisation), but not all unfairness, injustice, or inequality is prohibited.
Advertising, application forms, and pre-screening procedures & interviews in relation to applicants, and conduct/treatment once a person has been employed, are covered.
Direct and indirect discrimination
Ansett v Wardley [1980]
Australian Iron and Steel v Banovic (1989)
NSW v Amery (2006)
Indirect discrimination involves a policy, program, requirement or condition impacts on a particular subset of employees and they are disadvantaged as a result
Direct discrimination involves disadvantage resulting from the possession of a particular characteristic
Anti-D law exceptions etc.
Compliance with a law or order
Reasonableness of a requirement
Genuine occupational qualifications
Exempted bodies
Inherent requirements
E.g. Qantas Airways v Christie (1998)
Bullying legislation
Fair Work Act 2009 jurisdiction
Repeated unreasonable behaviour towards a worker or group of workers
E.g. Bowker v DP World [2015]
FWC can order cease of bullying action, or other orders, including training of staff.
