Terms of common law action and Fair Work Act 2009
Describe about Andrea Castle who was an employee with Sage Direct Marketing Pty Ltd.
Andrea Castle was an employee with Sage Direct Marketing Pty Ltd. She was employed under an Enterprise Agreement. The enterprise agreements are the collective agreements that are made between employers and employees about the terms of the conditions of employment (Freedland, et al 2016). The Fair works commission approve the process of the enterprise agreements that are made. They also assess the terms of the contractual agreement.
She witnesses a robbery in action in a social gathering. She sent out an email to the employees to stay safe and that she saw a colored arm reaching for a purse. The use of the term “colored arm” and sending out a personal correspondence using the office email was the reasons for her being fired from the job. The email policy of the company states that the emails sent by the employees should be based only for the business purpose and the content of the email should not be offensive to others. The use of the colored arm description was deemed to be offensive by the managers. The company states that she had violated the internal email policy and the terms of the enterprise agreement. Andrea was to sue the company was wrongful termination. She cites that she had posted the email for the welfare of the people and posted information that was what she had witnessed during the course of the robbery. Owing to this the action of the company was deemed unfair by Andrea. This is the reason for her to consider seeking unlawful termination.
The purpose of this analysis is to analyze the validity of Andrea’s claim by using common law action and Fair Work Act 2009.
In the initial section there will be discussion of the actual terms of the common law action and Fair Work Act 2009
In Australia, the employees and the company are bound by a common law contract or modern aware or enterprise agreement along with National Employment standards (Poole, 2016). When discussing about the issues of the employment law it is important to first understand the structure of the employment law in Australia.
Statute law is the law that is created by the parliament. Common law is the rules that has been determined by the judges. The courts follow the mandates and the precedence of the previous cases. From the perspective of implementation, the parliament takes precedence. The courts interpret the laws and also the ambiguities based on the specific terms of the case. Employment law operates in the basic employment relationship that involves common law contract that has been regulated by the statute.
Statute and Common law
Unfair dismissal is when the employees are dismissed from the job in a harsh or unreasonable manners. Fair Work would analyze the claim if it was harsh or unjust and is the case was not a case of genuine redundancy. They would also look into the grounds for dismissal of the employee. The clauses that are considered if a particular case was harsh or unjust is based on the reason given by the company. The Fair Work commission will analyze if the action of the employee and the conduct (Freedland et al., 2016). The people who can apply for unfair dismissal are the people who have worked for the minimum employment period of one year and the people who have been forced to resign from their jobs. The eligible employees should be covered by the terms of the registered agreement and have an annual earnings of more than $138900. The employees have to apply within 21 days.
The company that dismisses the employee should also prove redundancy. The redundancy occurs when the employer shows that they no longer need the work done by the employee. The employee redundancy needs to be proved.
The issue with the Fair Work Act is that the dismissal claim cannot be resolves between the parties. The factors for determination if a case was fair or unfair is not clear (Freedland et al., 2016). The factors that are considered by the Fair Work Act is if the reason for dismissal was valid, if the person was notified of the reason, if the person was given opportunity to respond to a particular allegation, unreasonable refusal by the employer to have a person present, the factors that contributed towards unsatisfactory performance and the degree in which the employee were affected by the action of the dismissed employee and the impact of the dismissal on the company. The employee reason given to respond will be analyzed. The employed person should have a support person during the course of the dismissal. Previous warning to the employee will be analyzed. The history of conduct of the employee would be in purview. This has been detailed in Section 387 (Freedland et al., 2016). The remedies are either reinstatement or compensation by the company. Again this is based on the facts of the individual case. The legislative minimum rights of the employee are governed by the enterprise agreement or the modern awards and the common law contract along with the implied employment term.
Fair Work Act 2009: Unfair dismissal
Certain right and entitlements are created by the parliament to protect all the employees. and their rights. For example, the right to leave is mandated by the National employment service which is a part of the Fair Work Act 2009. The Fair Work act also discusses about the right to belong in unions or protect employees against discrimination. Added to this the federal and the state laws mandates the ways in which it can provide remedies for unfair dismissal.
Enterprise agreement/modern awards provide detailed protections and regulations based on the specific industries and occupations. Enterprise agreements in general are the business specific agreements that is made by the groups of employees and their employer. The enterprise agreement is a contractual agreement that is approved by the Fair Work commission.
Common law contracts are the basic relationship that exists between the employer and the employee in a civil contract. In this the employee agrees to work for the employer for exchange of payment. The employment contract is similar to the civil contract. The terms of the employment contract are based on each subjective cases. But according to the law they need to follow the legislative minimum rights and the modern aware or enterprise agreement. The courts will uphold the contract when the parties have willingly agreed to the terms of the signed contract.
Another tricky aspect to the courts is the implied terms of the contractual agreement (Susskind, 2013).
Implied terms are the reasonable notice of termination between the employee. The implied duty of mutual trust and confidence is considered in this analysis. The implied duty of trust and confidence is that the employee should work in good faith efforts and not in the manner of termination. Modern companies need to be registered after the implementation of the Fair Work Act 2009. These statutory requirements regulate the rules regarding employment. The employee and employer relationship are bound by the common law contractual requirements. The enterprise agreement has precedence over the common law contractual terms. All these terms form a part of the agreement.
According to the Fair Work 2009 act, the company that choses to dismiss an employee should ensure that there is redundancy by the employee. But this was not the case. The employee was fired for sending one email. She was not disciplined rather was dismissed.
In the case of Anderson v Thiess Pty Ltd  FWC 6568, Mr. Anderson was summarily dismissed for sending a work email that was offensive to the people belonging to the Muslim faith. In spite of the case being offensive and against the policy of Thiess Anderson was awarded compensation (Legg, 2014) . The dismissal was considered to be harsh because of only the previous verbal warning given to Anderson. He was above the age of 65 and he would have difficulty obtaining other employment. The Thiess also did not give Anderson enough time to accept the contents of the email or apologize to the people for offending them (Legg, 2014) . Based on this case, it can be argued that Andrea was not given any form of warning by the company. Under the clause of the Fair Work she should have been given some place to voice her opinion instead of firing her (McKendrick, 2014). She was not given the opportunity to express or take back the email. The company did not find any issues with the work conduct of Andrea. It can be argued that the company based on the case of Anderson that they should have given her some other means of disciplining instead of dismissing her. The redundancy aspect was also not addressed by the company to prove that her firing would not cause the company any considerable losses.
Legislative minimum rights
In Wise v Mildura Aboriginal Corporation, the applicant lodged a complaint for unfair dismissal. The employment was terminated after the employer did a police check that determined the applicant was charged with possession of ecstasy and unlawful possession of explosives in 2012. But the conduct in question was minor hence the courts let him go with a small fine of 350$ (Moran and Mallman, 2015). The courts explained that the dismissal were harsh and unjust. The reason given by the courts is that the conduct of the employee was not so serious to repudiate the damage of the company. Andrea can argue using this fact that there was no damage done to the reputation of the company by sending out the email. She had only merely stated the events to protect other employees. There was no indication that she wanted to act in malice against the colored people or anyone in particular (Southey and Southey, 2016). She can use this argument to cite the reason for unfair dismissal. She could argue that her conduct did not breach any violations or cause the company any reputable or tangible damage.
In the case of O’Keefe v The Good Guys (2011), Good Guy company fired O’Keefe because he had made derogatory comments on Facebook page about one of his colleagues and the company in general. He was dismissed from the company owing to the actions. O’Keefe filed an unfair dismissal but the Fair Work Act deemed the dismissal to be unreasonable because he had posted the particular comment outside working hours and not used any names in the post. It was considered by the courts that the actions of the employee were to demean the company and the reputation of the company (Wilson, 2016). Hence it was determined to be a fair ground for dismissal by the company. The company can argue that the comments about the “colored hand” were abusive to some of the employees and that would be perceived as discrimination by these employees.
Similarly, in the case of Serafini v Holcim (Australia) Pty Ltd (2011), the truck driver posted traffic accidents while driving and posted the pictures on You tube and his social media page. Shortly after he was fired for posting pics during the work hours (Wilson, 2016). The Fair Work deemed the dismissal to be valid. Since he was not working according to the prescribed mandates and posting on social media instead. Using this case, the company can state that Andrea was not working during the working hours instead she was posting unrelated content that was not towards the business purpose of the company. Citing this they can say that she was not working the company’s work during this time instead was sending out emails with agenda.
Analysis of the case
The courts usually consider the intent and the complete reason behind firing of the employees in each of these cases. It is difficult to understand the precedence of the courts as the courts have ruled in many ways in the past cases. Certain common factors can be understood in these cases. In these cases, the intent of the employees is considered by the courts. The look at the reason behind the employees making a particular action. In Andreas case this factors that would work in her favor are the fact that she wanted to help the employees, there was no malice intended, she did not cause the reputation of the company to be affected as she was only citing the evidence she had witnessed and most importantly she was not given any opportunity to explain a stance. These factors could be argued as the factors that contributed towards the unfair dismissal of the employees. The company also did not show the ways in which she was redundant or her action had caused the company any considerable loss. The company wanted to maintain an appearance owing to which she was fired.
But she had signed the contract and agreed to follow the mandates of the email policy. The contract law usually is considered when there is a contract that is signed between willing adults. She was also using company official mail for purpose other than business during working hours. The contract also claimed that the terms are bound to change. The terms related to determination of what is right and unfair is not very clear in the implementation of the Fair work act by the cases. These causes obscurity in the ways of implementation of the Act (Stewart, 2012.). The most important factor that would aid in the case of Andrea was that she was not given an opportunity to present her case and her intent would be considered by the Fair Work Act while making the determination.
Andrea Castle was fired for sending out an email warning the employees to be careful from a colored hand. She wants to file a suit for unfair dismissal. Common contract law is the ultimate law that is considered in the cases of the employee employer relationship. Apart from this she had sent an email during working hours that was not related to the business aspects of the company. These factors could work against Andrea. However, the Fair Work Act 2009 was implemented to protect the rights of the employees. Andrea can argue that she was not given any space to voice her opinion or take back the email that she had sent to the employee. She did not have any support system when this dismissal occurred. Andrea dismissal was not proved under redundancy clause. There have been previous cases where the Fair Work has considered reinstatement of the employee or providing the employer with a certain penalty for firing under unfair clauses that was harsh. The courts look into the subjective nature of the cases and make determination. It has been considered in this analysis after weighing in on the positives and the negatives of the case that Andrea has a strong case to present to the courts.
Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds., 2016. The Contract of Employment. Oxford University Press.
Legg, M., 2014. Class action settlements in Australia-the need for greater scrutiny. Melb. UL Rev., 38, p.590.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Moran, A. and Mallman, M., 2015. Understanding Social Cohesion in Shepparton and Mildura: Literature.
Poole, J., 2016. Textbook on contract law. Oxford University Press.
Southey, K. and Southey, K., 2016. To fight, sabotage or steal: are all forms of employee misbehaviour created equal?. International Journal of Manpower, 37(6), pp.1067-1084.
Stewart, A., 2012. Australian labour law in transition: The impact of the fair work act. New Zealand Journal of Employment Relations (Online), 37(1), p.3.
Susskind, A., 2013. Unfair dismissal benchbook. Law Society Journal: the official journal of the Law Society of New South Wales, 51(11), p.24.
Wilson, J., 2016. Employment law: A balancing act: Effective management of workplace disrepute by employees. Ethos: Official Publication of the Law Society of the Australian Capital Territory, (239), p.38.
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