Chapter 7

Unfair Dismissal,

Discrimination &

Harassmentpp.209-219

Definition

Unfair dismissal: where an employer dismisses an

employee in circumstances the law defines to be unfair.

Changes over time

1994: UD laws introduced

1997: Laws changed to reflect ‘fair go all round’ concept

2006: More changes

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)

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

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

Courts have found that not telling an employer

something relevant to whether the worker should be

employed is also a valid reason for dismissal

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

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?

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

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.

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.

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?

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

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

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

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

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

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

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

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

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

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

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

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…)

Recent example of unfair

dismissal

This was in America, but still…what do you think?