The Fair Work Act 2009 (Cth), all the employed population in Australia which works under specific Commonwealth workplace law is entitled to general workplace protection facilities and amenities. The Fair Work Act 2009 (Cth) applies to national system employees and employers of the country(Crowe et al, 2017). The national system employee is defined as the person who is not on a vocational employment but is employed by the national system employer. The employees working in the private sector in South Australia are also considered as national system employees and are also covered Fair Work Act 2009 (Cth).
The Fair Work Act 2009 (Cth) entitles the employees covered under it to parental leave, a notice must be served to them before termination and no unlawful termination can be done in whole of the Australia. These provisions apply to South Australian local government employees and South Australian government employees both (Crowe et al, 2017). The Fair Work Act 2009 provides protections of certain rights of the employees which include the following rights and facilities to the employees employed within Australia. The act provides the workplace rights to the employees, the right to participate in trade activities of the organization, protects against unlawful discrimination and the right to not be pressurized or influenced while negotiating on the individual agreements.
These rights are protected from different unlawful activities from the side of employers such as different activities leading to misrepresentations, adverse action, coercion; the employees are also protected from wage deductions, savings of annual earnings and flexibility of recent and modern award system.
The rights of employers are also protected along with the rights if employees by means of collective bargaining and an effective independent tribunal system are being set which helps in an independent ability to assist employees and employers both under the national workplace relations system and authority. The employers are protected against any false allegations by the employee’s side or any forced demands being made from their side. (Crowe et al, 2017)
The Fair Work Act 2009 and unfair dismissal of employees
A person is considered to be unfairly dismissed if the person has been dismissed, the dismissal is harsh, unreasonable and unjust, the dismissal was not in accordance with the genuine redundancy and the dismissal is not consistent with the Small Business Fair Dismissal Code. The employee and employer both have rights over proving the wrong and right dismissals through above mentioned points. (Forsyth et al, 2017)
The dismissal will be considered harsh if there is not any valid reason for the employee’s dismissal while the dismissal is not harsh or unreasonable if the dismissed employee’s activity caused problem to safety and welfare of other employees(Forsyth et al, 2017). If the person is notified for his dismissal and was given an opportunity to explain himself then it is not considered unreasonable, if the employee had unsatisfactory performance in the past, he is not following the correct protocols for the job being assigned to him then employee will not be blamed for such dismissal.
If the dismissal was consistent with the small business fair dismissal code that is the employer provided notice of dismissal to the employee immediately before the dismissal and the Small Business Fair Dismissal Code in relation to the dismissal was compiled by the employer out rightly. Then the employer can take help of tribunal in case of any grievance. The employees who have been dismissed in an unfair way can take an action under the Fair Work Act 2009 (Cth), the dismissed employee needs to convince the relevant grievance handling body that the dismissal was harsh, unreasonable and unjust in real terms. All the activities and protocols that affect the facts and results of particular case of employee termination depend upon the general standards of fairness being followed in the industry.
In case of misconduct, bad job performance and inefficiency the employer needs to warn the employee in a formal and clear way that the recurrence and repetition of such activities, similar behavior and misconduct will result in the dismissal. The employees will also be communicated that such kind of behavior will not be tolerated in future. The case of gross inefficiency or gross misbehavior the employer can directly dismiss the employee after providing a prior notice. (Forsyth et al, 2017)
The employer needs to consider different alternative ways and actions such changing the employee’s job location, work station, job classification or an employee can issue a warrant as well, if the employee refused to accept these alternative ways then he can be dismissed and if the employer behavior was due to the cause of another job offer to the employee then it can be taken into account and may be considered as harshness on his part. If a serious misconduct like theft or stealing takes place then the employer needs to prove the activity beyond a reasonable doubt and prove the employee is guilty of the offence. The employer needs to conduct extensive investigation and need to take into consideration all the probabilities which made the particular employee to conduct such activity.
The Unfair dismissal laws help the employers to make fair decisions while taking dismissal decisions and take into account all the past and present job performance details of the employee and all the relevant circumstances before making decision to dismiss the employee. These laws are not made to interfere with the employee activity of conducting their business but focuses on the point of considering all these cases as an individual example. The general guideline for dealing with dismissed employees without sufficient reason is that the act of dismissal must be taken care with due care and the employee must be treated with dignity and his self respect must be maintained. (Forsyth et al, 2017)
The examples where dismissal of the employees can be treated as fair can include the following and can help the employer to come out clean of a grievance are as follows:
When the employee refuses to follow and obey the lawful instructions provided by the employer.
When the employer has given repeated warnings to the employees repeated and consistent incompetence, inefficiency and negligence and when the work of the employee is unsatisfactory and he has been given a chance to improve his performance and a warning has also been issued that they could be dismissed if they don’t improve their performance. (Higgins, 2018)
When the employee is not able to perform the duties and responsibilities of the position he has been confided with, like in case when the employee is being imprisoned and is not able to come for work. While when the employee is dismissed when he was ill or injured, he needs to be given special consideration and legally he is safe from dismissal and he can sought legal advice if he is dismissed in such case.
When the employee does misconducts such as he reported drunk to work or was on drugs while working. When the employee is found guilty of involved in assaulting someone, breached some work safety standard, has shown dishonesty at some level of work or was involved in some kind of criminal activity(Higgins, 2018). All these situations depend upon so many factors such as the seriousness of the misconduct done, the type of work, the duties being performed by the employee in the situation, the length of the service of the employee and his work record etc.
When the employer retrenches the workers due genuine lack of work or restructuring or reorganization of the workplace then this kind of dismissal is considered valid. While the employer needs to follow and take care of all the agreements and awards necessary to cover the employee.
In case an employee neglects his work and do not uses his minimum skills to perform on the job or disregards the employer’s instructions then also if he is dismissed then it is considered valid. The employer must take care of trivial and harmless events.
In the law there is a term used constructive dismissal when the employee leaves the job and employment voluntarily because it has become difficult for him to continue work over there. This resignation is considered as constructive dismissal as it was not voluntary and the employee can claim for unfair dismissal. Constructive dismissal only takes place when employer makes the work conditions become difficult for work for the employee and employer also behaves in a way that breaches the terms and conditions of employment contract. (Higgins, 2018)
One such example can be that employee faces sexual harassment at work and employer does nothing to stop it and protect the employee.
The The Fair Work Act 2009 (Cth) protects the employee and employer both in many ways that none of the party can harass one another in anyway. The employee is safe from the employer that he cannot be threatened to be sacked if he doesn’t resigns. While the employer cannot convert the voluntary resignation to the constructive dismissal as he needs to provide reasonable choices before because it may be difficult to prove later(Ross, 2018). According to law the maximum compensation for Unfair Dismissal is £80,541, or 52 weeks gross salary- whichever is the lower. This is in addition to the basic award which can be ordered by the Tribunal of up to a maximum of £14,670. This law has provided protection and safety to both the employee and employer. (Ross, 2018)
Crowe, J., Gray, A., Wolf, G., Creighton, B., McCrystal, S., Dyer, A., & Bevitt, N. (2017). the sydney law review.
Forsyth, A., Howe, J., Gahan, P., & Landau, I. (2017). Establishing the Right to Bargain Collectively in Australia and the UK: Are Majority Support Determinations under Australia’s Fair Work Act a More Effective Form of Union Recognition?. Industrial Law Journal, 46(3), 335-365.
Higgins, R. C. (2018). INDUSTRIAL RELATIONS: FAIR WORK ACT 2009 (CTH)-ENTITLEMENT OF INDUSTRIAL ASSOCIATION TO REPRESENT INDUSTRIAL INTERESTS OF PERSONS-FAIR WORK (REGISTERED ORGANISATIONS) ACT 2009 (CTH).
Ross, A. (2018). Workplace law: Abandonment clauses abandoned FWC updates six modern awards. Proctor, The, 38(3), 34.
Ross, A. (2018). Workplace law: Indemnification of personal penalties: A golden ticket out of legal obligations?. Proctor, The, 38(1), 36.