BSL202 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: o Union membership o Discrimination o Absence form work during maternity leave o 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.
