Essay: Unfair Dismissal In The Workplace - Law And Social Justice.

Legal Issues Surrounding Unfair Dismissal

Discuss about the Contemporary Readings in Law and Social Justice.

People end jobs based on many reasons prevailing in the workplace that can be personal or can be the decisions by the employer (company). In some instances, individuals end jobs on their accord, which is the way the majority of the people would want to leave their jobs. Whilst other moments, individuals are victims of circumstances that surpass their control, and have been terminated or sacked by their employer for reasons known or unknown to them. Therefore, in some instances, many employees have been terminated unfairly, which translates to unfair dismissal from their work and under the law, they should take action immediately (Sanders, 2014). Unfair dismissal in the workplace takes place when a worker is terminated in a harsh, undeserved, or unfair way. For instance, a termination might be harsh due to its effect on the worker, or since it is lopsided to the worker’s misbehavior or poor performance.

Issue

In the scenario of Dwaine, this was a case of an unfair dismissal under the law. Dwaine being a full-time employee working for dance audio company was dismissed by his employer, Stan, after failing to turn up on weekends to take classes in River Dance, but Dawaine feels that being a full-time appointed does not need to work on the weekends. However, Stan threatens to dismiss on the grounds that he fails to take classes on weekends. Stan went further and dismissed for failing to turn up on weekends; nonetheless, it is well-known to Stan that Dwaine was taking care of his elderly father as he was a sole carer. In the scenario, the law under the “Fair Work Act 2009 (Cth)” that became functional in 2010, requires that full-time appointed employees work for 38 hours a week. In the scenario, Dwaine believed that he was not supposed to work on the weekends based on the nature of the contract a full-time employee in the company. Therefore, it was unfair for him to be dismissed for missing the weekends that he was not supposed to work for the company as the 38 hours hours do not cover the weekends. Consequently, this implies that Dwaine was dismissed unfairly from the work and working the weekends was not provided for in the contract being a full-time employee of the company (Blake, 2002).

The other legal issue that arises in the scenario is that Dwaine was not served with a notice as required by the law. The Fair Work Act 2009 (Cth)” requires that an employer or a company serves employees with notice before terminating his/her services. Under the law, the minimum period of notice of termination for an employee applies only to notice provided by the employer or company (Brodtkorb, 2014). The period of notice of termination needs to be awarded founded on the contract of employment. The law demands that all workers should be entitled to get minimum period of notice termination or dismissal. Dwaine was entitled to further notice of termination provided in the modern award, or contract employment. The notice period is meant to offer the employee the chance to find a new job with minimum disturbance to his career along with earning capacity (Blake, 2008).

The Duty of Fidelity

Rule

Unfair dismissal can also be harsh since the worker was not guilty of the supposed misconduct or poor performance by the employer or a company. The Fair work Work Dismissal in Australia might consider a worker has been unfairly dismissed if: the individuals was dismissed; the dismissal was unfair, harsh, or unreasonable; and the dismissal of the employee was not the case of an authentic case of redundancy (Blake, 2008). In the case of Dwaine, he was terminated without notice, which amounted to unfair dismissal that is subject to appeal. Also, there was no consultation between Dwaine and Stan, but threats from the employer (Stan) who only summarily dismissed Dwaine on the ground that he refused to work over the weekends. The Act needs that the employer and the employee consult in any case. If there was some consultation between the two as required by the law, Dwaine could have explained why he could not attend the weekends and there could have not dismissed. Additionally, it is also clear from the scenario that a due procedure was not followed in dismissing Dwaine as the employer summarily dismissed despite understanding the situation that Dwaine was under. There were no specific procedures that were followed in dismissing the employee, which makes the dismissal unfair under the Act (Ewing & Hendy Qc, 2012).

Application

In the scenario, it was evident that Stan never attended the weekend classes to teach because he was attending his elderly father as he was the sole carer. This implies that he was could not leave his elderly father for the sake of the job given the fact that he contract exempted him from working on the weekends as he professes. In addition, Stan understands very well that Dwaine is the sole carer of his elderly father and he was not supposed to dismiss him on this ground that this was a matter before his conscience. The law stipulates clearly that one can take off to take care of the “dependent”, which is treated as a family emergency. Dwaine never attended the weekend classes because he was obliged to take care of his elderly father as he was the only one would could provide for the dependant (his elderly father). The law requires that an employee inform as soon as reasonably practicable, but Stan was aware that Dwaine had an elderly father that he takes care of (Davidov & Eshet, 2015). Therefore, it is right for Dwaine to believe that this was a case of unfair dismissal from the work founded on the above legal grounds. The act by Stan was unreasonable based on the provision of the law and he should have not dismissed him on the grounds that he refused to work over the weekend as this can be treated as an emergency from the family roles as a sole carer.

In conclusion, it was evident in the scenario that this was not the case of redundancy, which means it was unfair dismissal. However, Dwaine can claim for this dismissal under the provisions of the FW Act because he was an eligible employee of the company. There are several grounds that warrant Dwaine to claim that this was an act of unfair dismissal by offering the different premises to the relevant tribunal. Under the law, Dwaine is required to lodge the claim within 21 days of the dismissal coming into effect. After presenting the pertinent documents regarding the claim of unfair dismissal, Fair Work Australia (FWA) can make inquiries and deliberate the matters before them with Stan (employer) and Dwaine (employee). It is likely that Dwaine will win the case when the due provisions of the law are followed (Davidov & Eshet, 2015).

Conclusion

The duty of fidelity is an “implied” concept that stipulates that a worker will serve up the employer with good faith or loyalty. Thus, the duty of fidelity is owed by all workers and is to be distinguished from a fiduciary duty. Each employment contract has an implied term, which a worker will serve their employer with fidelity. The duty based on the implied term is owed by all the workers and is to be differentiated from fiduciary duty, the duty of fidelity demands that an employee have the duty towards the interest of the employer. The duty of fidelity is said to be implied because not each condition of the employment should be in writing for it to be legitimate. In cases in which there is not written agreement, or the agreement does not detail what is to take place is some scenarios, a contractual term “implied” is used. The duty of fidelity entails a huge number of definite needs or restrictions, which covers nearly every element of the worker’s duties to the employer (that is should punctually in the workplace, adhering to the set workplace policies, acting honestly among others) (Hunt, 2015). The duty of fidelity is characteristic of all employment associations and it continues all through the time of employment, comprising any time when the workers is not actually in the work, and only stops at the end of the employment, though the degree of the employee’s duties in the leisure time might be less arduous than in the working hours. The Spotless Group Limited v Blanco Catering Pty Ltd offers a perfect case of the duty of fidelity case in Australia. The manager used the company copyright to foster competition and was fined $100,000 for damages.

The duty of fidelity requires that all employees should not have a conflict interest. Under the duty of fidelity, employees should not be in a conflict of interest to the potential employers. Workers might be taken to be in a conflict of interest position if: the worker is competing with the employer. The employee should perform the job honestly, as well as faithfully. This comprises the duty to account for any resource utilized, as well as pass on to the employer any proceeds made through the employment. Accordingly, the duty of fidelity needs that a worker is honest in his undertakings with the potential worker. Dishonesty with usually validate summary dismissal, and even the employer’s reasonable belief in dishonestly might make a dismissal just (Levine, 2011).

Under the duty of fidelity, during employment should not work for a competing business. During the employment, a worker cannot solicit clients (that is lure client away) to a competing dealing, or lure clients with the intent of building a competing trade. For example, copying the names of customers for prospect exploit is considered a violation under the duty of fidelity. This implies that the employee should not use the employer’s time and resources to build a contending trade, which amounts to solicitation (Lewis et al, 2004).

Confidentiality demands that employees should uphold high standards not to disclose information that can be seen as breaching the employer’s policies. Accordingly, confidential information may be safeguarded in many ways, which include restraint of trade clause, under the equitable duty of assurance, or as a portion of implied duty to loyalty to the owner (Dawson, 2014). For instance, a worker could be in violation with the implied duty if throughout the employment, as well as for uses rather than employment, the employee made some clients, copied software, memorized formulas or offered details to competitors regarding agreements the present employer had pursued. The data disclosed must not be written to be considered confidential. The worker may carry to use the general “knowledge” following the termination of the job. Knowledge is the type of information, which is utilized on a daily basis as the ingredient of the employment and cannot practically be considered as a detach along with a confidential portion of the worker’s stock of know-how. For instance, knowledge may include the name of a specific client or supplier in which there has been no intentional endeavor to imitate or memorize names (Korsgaard, 2009).

Moreover, an employer’s confidential data may be safeguarded by restraint trade section, by the implied duty of fidelity, as well as loyalty. The violation of the equitable duty of assurance by the workers, via unjust utilization or exposé of the employer’s private data, might offer the employer with tonics, such as injunctions, compensation, and recuperation of gains accruing from the breach confidentiality. The case of Robb v Green [1895] 2QB1 introduced the principle of duty of confidentiality, where should treat the information that has been categorized as confidential by not disclosing to the third-party (Hunt, 2015).

Vicarious liability is a long-established principle of English law that can be traced back in the 17^th century. The principle was based on policy other than conceptualizing thinking and essentially fashions strict liability of the employers for their employees’ actions since the policy reasons are taken to impose a liability (Morgan, 2016). Like several fields of the common law, the principle of vicarious liability has evolved, especially in later decades. In this doctrine, there two primary tests that must be considered. First, it should be considered whether the association between the defendant and the wrongdoer or tortfeasor is adequately intimate to be taken as an employer/employer relationship. Second, it should be considered whether the action complained was within the realm of the employment relationship between employee and employer. As the nature, if working associations evolved during the late twentieth and twenty-first century; therefore, too the test for what is employment association. Where beforehand the court examined to tee “control test” alone, currently many tests are put into consideration to make that determination as it was in the E v English Province of Our Lady of Charity and another.

Vicarious liability entails the obligation of the burden on one individual for the negligence of another individual whom the earlier has delegated the accomplishment of any job on their behalf. Vicarious liability originally came into being in which a worker commits a tort in the extent of the job. For instance, an owner of the business might be liable vicariously for a truck driver in its employment that neglectfully runs into another truck whilst transporting goods for the company (Chunyan, 2014). The development of vicarious liability mirrors the reality that the owner of the firm is more probable to be able to shoulder the price of the calamity more than the wrongdoer, and that, the employer gets some gain from the worker’s act; nevertheless, it is just that the risk of that act must be borne by the company. Thus, the reason that underpins vicarious liability is not a fault as in negligence; however, it should be the employment agreement amid the defendant and the offender. Therefore, the common law implies into the agreement of the job, which means that the worker will undertake the agreement with sensible care. The employer is entrusted to recover from the employee a donation for any damages that the employer is liable to reimburse to the individual killed or injured. In some of the Australian laws, there is a law, which stipulates that only the employer is liable, and not the worker. In some given regulations, there exist no statutory provisions, which take away the right of the company to recuperate the contribution or an indemnity from the worker (Daniels & Martin, 2016).

As the early era of change on the vicarious liability doctrine was witnessed in Morris v CW Martin & Sons. Possibly, it was not surprising that this early evolution and development cam in a verdict of a court concluding Lord Denning MR. Denning, commenting on the broader evolution of the doctrine of vicarious liability in the past 100 years, asserted that the 1912 decision to support the reality that an employer would be liable for the criminal act for the employee. The court maintained that the final analysis of the case was that it was correct to impose liability for the employer owed a duty to take care of the goods (Neild, 2013). Until 1990s, the fundamental test for making the decision whether the employer must be held liable in such scenario was to believe whether the worker had utilized an unconstitutional technique to do a job he was endorsed. However, the right test nowadays, is to focus on the relationship between the temperament of the service, as well as the specific wrong committed. This means that this will allow the courts to decide generally, whether it is fair and reasonable, to hold the employer vicariously liable. Lister v Hesley Hall Ltd [2001] UKHL 22 is an English that has established precedence towards finding where the employer is vicariously liable for the torts of their workers (Damiano, 2014).

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