Matthew J Bannon
Fair Work Act Review Panel
fairworkactreview@deewr.gov.au
Dear Sirs,
Thank you for the opportunity to make a submission to the post implementation review of the Fair Work
Act 2009 (Fair Work Act).
The Review Panel’s terms of reference include a direction by the Minister for Employment and
Workplace Relations, to examine and report on the extent to which the Fair Work Act is operating as
intended, including inter alia:
“4. effective procedures to resolve grievances and disputes;
5. genuine unfair dismissal protection;”
My submission is guided by several questions as provided in the very helpful Fair Work Act Review
Background Paper, specifically:
“39. Should dismissed employees be able to invoke the general protection provisions to
challenge their termination without any time limit on making an application? If so, why, and if
not, not?
42. Do the unfair dismissal provisions balance the needs of business and employees’ right to
protection from unfair dismissal?
43. Consistent with Government policy objectives, does the Fair Work Act provide genuine
unfair dismissal protection? If so, how, if not, why not?
44. Are the procedures for dealing with unfair dismissal quick, flexible and informal and do they
meet the needs of employers and employees? What is the impact of the changed processes
upon the costs incurred by employers and employees?”1
Each question is not answered individually in this submission, rather they are used as a boundary to
critique the extent to which the Fair Work Act termination/dismissal process is operating as intended in
my view.
May I take this opportunity to reassure the Review Panel that I have not been unfairly dismissed or
made claim to have been unfairly dismissed by an employer, nor have I unfairly dismissed or been
accused of unfairly dismissing any employee.
Yours sincerely
M J Bannon
1
http://www.deewr.gov.au/WorkplaceRelations/Policies/FairWorkActReview/Pages/Home.aspx
Submission to the Review Panel examining and reporting on the post implementation of the
Fair Work Act 2009 (Fair Work Act)
Mr M J Bannon
1. Legislation
1.1
The key unfair dismissal provisions in the Fair Work Act are found in Part 3-2. Section 381
states that the object of this part of the Fair Work Act is:
“(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
“fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in re Loty and Holloway v
Australian Workers’ Union [1971] AR (NSW) 95.”
1.2
Section 385 explains unfair dismissal as the circumstance where Fair Work Australia (FWA) is
satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see
section 388.”
1.3
Section 387 lists the criteria FWA must take into account when considering whether or not a
dismissal was harsh, unjust or unreasonable:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
1.4
The Fair Work Act provides at Section 394 that an application must be made within 14 after
the dismissal took effect or within such further period as FWA allows under subsection (3).
Subsection (3) allows FWA to permit a further period for the application after it takes into
account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
1.5
Section 396 directs that the FWA must decide certain matters relating to an application for
an order under Division 4 before considering the merits of the application. These matters
are:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
2. Extent to which the Fair Work Act termination/dismissal process is operating as intended
2
2.1
Based on the Fair Work Act sections identified above, a sample of relevant applications
lodged with FWA were extracted from the Australian Legal Information Institute site2. The
sample reflects a mix of applications from a variety of Australian states over the past three
years. A complete list of applications scrutinised is at Annex A, although a total of 230 were
retrieved as a result of “unfair dismissal” and “exceptional circumstance” search
parameters.
2.2
The connection between sections 387, 394 and 396 denote the procedural elements for
determining whether or not a termination/dismissal was legitimate, harsh, unjust or
unreasonable. If a triangular diagram could be drawn, it would show section 387 as the
decision-making corner of the process; section 394 would be the applicant corner and
section 396 the FWA application lodgement corner. The centre of the diagram would be the
stakeholders, namely the applicant, employer and FWA.
2.3
Using the examples found in the limited time to make this submission, overwhelmingly the
operation of the related sections appears to be ineffectual.
http://www.austlii.edu.au/
3. Case Studies
3.1
One application from 2009, the first year of operation of the Fair Work Act, found that an
applicant was granted an extension of time because they had applied to the then Industrial
Relations Commission3. However, other later examples of lodging an application in the
wrong jurisdiction (Industrial Relations Commission or Workplace Ombudsman) are not
treated as exceptional circumstances4. There is also a case where an application was one
day late due to the postal process and the application was rejected by FWA5.
The view expressed by one FWA Commissioner concerning ‘exceptional circumstances’ and
application lodgement time was:
“There has been a conscious decision by the Parliament to reduce the statutory time
limit by 7 days. At the same time the legislation does not now include a more liberal
test for allowing a further period to make an application, indeed arguably the new
reference to “exceptional circumstances” in s.394(3) suggests a stricter test6.
3.2
In a particularly confusing decision, FWA dismissed an application based on the period of
employment. Apparently without the ability to engage legal representation to appeal, the
applicant must be satisfied with this:
“… I accept that the Applicant commenced employment with the respondent on
28 May 2009. I am also satisfied that the applicant’s employment was terminated on
1 November 2010. The Applicant was employed by the Respondent for a period of
less than 6 months.”7
3.3
An example of an apparent higher threshold of administration and management on the
applicant than on the employer is when errors or omissions on the employers’ part can be
ignored:
“The applicant was employed by the respondent for a period of approximately
seven years. There is a dispute between the parties as to whether the applicant
resigned or was dismissed, however it is agreed that, whatever the case, the
severing of the employment relationship took place on 4 September 2009.”8
By taking the position “whatever the case”, the FWA implies to the applicant that the
requirements of ss. 387 (a), (b) and (c) in particular, are irrelevant.
3.4
3
In the limited sample, there were three examples found where extensions were granted.
Two applications were two days overdue and the other one day overdue. In each case, the
applicants’ were represented by solicitors who took some responsibility for the delay.
Exceptional circumstance? Perhaps not as it is not always the case that being represented by
a solicitor will afford an extension of time as found in one case9. The point here is to bring
into question the flexibility of the process if one needs legal representation.
Matthew Palmer v RCR Engineering Pty Ltd - re Application lodged beyond time allowed - further period allowed
[2009] FWA 1431 (2 December 2009)
4
Robertson v Zeugma Electrical & Communication Services Pty Ltd [2010] FWA 4525 (17 June 2010)
5
Varcoe v Leo Fardell Pty Ltd [2010] FWA 6025 (12 August 2010)
6
Robert Lim v Downer EDI Mining - re Termination of employment [2009] FWA 457 (2 October 2009)
7
Eighani v Myer Pty Ltd [2010] FWA 2270 (17 March 2010)
8
Dahi Bakour v Fresh Poultry Pty Ltd [2010] FWA 1436 (24 February 2010)
9
Smith v KJM Contractors Pty Ltd [2010] FWA 5515 (29 July 2010)
4.
Conclusion
4.1
The legislation, specifically the process stipulated, does not seem to take sufficient account
of the many situations where the employee is not even aware they have been dismissed nor
the shock experienced when they realise they are no longer employed.
4.2
If the Review Panel finds that views expressed in this submission, that there are uneven
procedural have merit, then a comprehensive analysis of section 396 (a) FWA decisions
could be recommended. The analysis could result in publishing statistics illustrating the
number of potential breaches of employers would have to answer to compared to actual
FWA decisions in favour of applicants.
4.3
Even without separate research and analysis, the Review Panel may consider recommending
a more flexible provision for dismissed employees to invoke the general protection
provisions to challenge their termination. A relevant time period beyond 14 days would be
appropriate. The period could be established using some calculative method based on the
average time actually taken to lodge applications over the past three years. Even more
efficient, would be to prescribe the application time and general protection provisions and
thereby place such requirements in regulations or even administrative instruments rather
than in the Fair Work Act.
4.4
Perhaps part of the solution can also be found if the legislation compelled the FWA
Commissioners to turn to the merits of the case when determining whether or not to grant
an extension of time for the application. Seldom used, the relevant case and indeed the
Explanatory Memorandum to the Fair Work Bill 2008 both state that:
“The merits of the substantive application may be taken into account in
determining whether to grant an extension of time” 10 and 11.
10
11
4.5
Another part of the solution may be to directly link the application time to the notification
of dismissal provisions, in addition to the existing ‘exceptional circumstances’ element. The
time provisions are considered disproportionately strict when looking at many of the sample
cases referred to in this submission. For example, where ss. 387 (a), (b), (c) and (e) were
relevant and the applicant was not even aware they had been dismissed let alone aware of
the reason. I refer also to the FWA Commissioner’s comments in Robert Lim v Downer EDI
Mining case mentioned above at 3.1.
4.6
My view is, as well as my proposition to the Review Panel is, that the unfair dismissal
provisions in the Fair Work Act are not working as well as they could or should. This is
mainly because an employer can breach more than one section of the Fair Work Act and be
exempt from punitive or coercive decisions by FWA that would modify their behaviour (and
potentially the behaviour of other employers) simply because an applicant fails to meet
what should essentially be an administrative requirement.
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Explanatory Memorandum to Fair Work Bill 2008, paragraph 1573.
References
Anderson v Kestrel Coal Pty Ltd [2011] FWA 6862 (12 October 2011) (Queensland)
Applicant v Respondent [2010] FWA 1062 (11 February 2010) (Western Australia)
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Bryan v Coles Group Supply Chain Pty Ltd [2011] FWA 4493 (4 August 2011) (New South Wales)
Burke v Department of Agriculture, Fisheries and Forestry - Australian Quarantine and Inspection Service
[2011] FWA 1386 (4 March 2011) (Queensland)
Chacko v Compass Group (Australia) Pty Ltd [2010] FWA 7418 (1 October 2010) (South Australia)
Chan v A Hotel [2011] FWA 7777 (11 November 2011) (New South Wales)
Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394
(25 February 2010)
Dafallah v Aged Care Services Australia Group Pty Ltd [2010] FWA 971 (10 February 2010) (Victoria)
Dahi Bakour v Fresh Poultry Pty Ltd [2010] FWA 1436 (24 February 2010) (New South Wales)
Eighani v Myer Pty Ltd [2010] FWA 2270 (17 March 2010) (Australian Capital Territory)
Ellis v TNQITC Pty Limited t/as Cairns Voice & Data [2010] FWA 2479 (15 April 2010) (Queensland)
Elzeiny v Combined Dispensaries Friendly Society Ltd t/as Friendly's Chemist [2010] FWA 7291
(21 September 2010)
Freeman v Litchfield Trading Company [2010] FWA 1364 (19 February 2010) (New South Wales)
Goebel v QR Limited [2011] FWA 3711 (14 June 2011) (Queensland)
Graham Jones v Holcim Australia Pty Ltd [2010] FWA 3129 (16 April 2010) (New South Wales)
Hillbrich v C & D DeMartin [2011] FWA 8375 (2 December 2011) (Victoria)
http://www.austlii.edu.au/cgibin/sinosrch.cgi?method=boolean;query=unfair%20dismissal%20and%20exceptional;meta=%2Fau;mask
_path=au%2Fcases%2Fcth%2FFWA;offset=160
Hudson v Pilbara Logistics (WA) Pty Ltd [2010] FWA 2948 (17 May 2010) (Western Australia)
Jones v Simon George & Sons Pty Ltd [2010] FWA 8928 (23 November 2010) (Queensland)
Karistianos v AS Automotive Pty Ltd trading as Anthony Smith Toyota [2010] FWA 4049 (28 May 2010)
(Victoria)
Kingsbury-Carr v Macquarie Discount Pharmacy [2011] FWA 7 (6 January 2011) (Australian Capital
Territory)
Lawler v Regional Power Corporation t/as Horizon Power [2011] FWA 2661 (9 May 2011) (Western
Australia)
Matthew Palmer v RCR Engineering Pty Ltd - re Application lodged beyond time allowed - further period
allowed [2009] FWA 1431 (2 December 2009) (Western Australia)
Mr Thomas Bee v Wesfarmers Kleenheat Gas Pty Ltd - re s. 394 - Termination of employment [2009]
FWA 1471 (2 December 2009) (Western Australia)
Parker v Department of Human Services, Southern Metropolitan Region - re Extension of time - section
366 [2009] FWA 1638 (15 December 2009) (Victoria)
Peters v Snorkel Australia [2011] FWA 4110 (8 July 2011) (Victoria)
Robert Lim v Downer EDI Mining - re Termination of employment [2009] FWA 457 (2 October 2009)
(Western Australia)
Robertson v Zeugma Electrical & Communication Services Pty Ltd [2010] FWA 4525 (17 June 2010)
(Western Australia)
Rose v BMD Constructions Pty Ltd re Unfair dismissal- extension of time for lodging application [2011]
FWA 673 (1 February 2011) (Queensland)
Sima Rezaee v Felav Pty Ltd t/as M & P&M Nanovich - re s.394 Termination of employment [2009] FWA
1455 (11 December 2009) (Western Australia)
Smith v KJM Contractors Pty Ltd [2010] FWA 5515 (29 July 2010) (Queensland)
Smith v Mr Keith Crook [2010] FWA 9835 (20 December 2010) (Tasmania)
Steele v Coffs Ex-Services Memorial and Sporting Club Ltd [2011] FWA 2012 (20 April 2011) (New South
Wales)
Varcoe v Leo Fardell Pty Ltd [2010] FWA 6025 (12 August 2010) (New South Wales)
Young v RJ Sanderson & Associates Pty Ltd [2010] FWA 1211 (17 February 2010) (Victoria)