This document provides an overview of unfair dismissal laws in Australia, including:
1. The definition of unfair dismissal and how the laws have changed over time, being introduced in 1994 and amended in 1997 and 2006.
2. The three main aspects of unfair dismissal law: having good reasons for dismissal, providing proper notice, and ensuring procedural fairness in the dismissal process.
3. Examples of cases related to unfair dismissal laws and how they have been interpreted by courts over time.
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?
