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Discussion

Discuss about the Unfair Dismisal Law and Employees for Small Business Fair.
 

In Australia, there are certain legislations that protect the interest of the employees so that their respect could not be affected. Provision of unfair dismissal protects the employees from being terminated on unreasonable factors. It is the part of the Fair Works Act 2009 and section 772 of the Act deals with the unfair termination of the employees. The whole legislation is based on the principle of equity, fairness and justice. At the commonwealth level, this protection has been applied in 1984 (Davidov, Guy and Edo Eshet 2015). However, after the allegation of unfair dismissal from the post of an employee, certain elements of the matter will be decided. It has been stated under section 385 of Fair Work Act 2009, it is to be decided whether the person has been terminated and the nature of the termination was unreasonable or not. Further, it is to be considered whether the whole policy of termination was accompanied to Small Business Fair Dismissal Code and the case is not of genuine redundancy. If the Fair Work commission has find out that all these elements have matched that make the nature of the termination unjust, an order of reinstatement or compensation will be commenced by the commission. Considering the definition of unfair dismissal, it has been stated by Callus and Sutcliffe, no employee will be dismissed from their post for unfair cause and the process should appreciate the provisions of the employment contract. 

It has been alleged to certain extent that Australian Law overly protects the employees. The provisions of the Fair Works Act 2009 do not applied to an employee who is working for less than six months (Ling, Sook and Dhillon 2018). Further, in case of a small business employee, at least 12 months working period is necessary for filing a case under the Act. The employees who are not a part of the federal workplace relations system will not become a part of the Australian Law. Apart from the various employment terms, there are certain conditions applied for the small business workers, where the rule of dismissal is different. According to the Small Business Fair Dismissal Code, not all the casual employees are a part of this legislation (Ross 2018). According to this, the regular casual employees, if terminated from their post, could make an application under this Act for their dismissal. The Australian Law has followed certain provisions of the Fair Work Act 2009 (Southey 2015). It has been stated in section 383 of the Fair Work Act that there are certain minimum qualifications mentioned for the employees for being capable to file a case against their termination. It has also been mentioned under section 384 of the Fair Work Act that the period of relationship in between the employers and the employees should be adjudged in the case of terminating an employee.  However, under the Act, certain prohibitions mentioned for the casual employees. Further, it has been stated that the employer should have to serve notice to the employees in case of termination and it is the basic right of the employees to get fair chance to give justification for their position (Sutherland, Carolyn and Riley 2016).    

Enactment of Provision of unfair dismissal

Certain manners are required to be maintained by the employees in this regard. After being terminated from the office, the employee should have to apply before the commission within 21 days. An employee can file a case for breach of general protection or for unlawful termination (Dang-Pham and Duy 2015). After the termination, a telephone conciliation process will be generated in between the employer and the employee and if the process failed, an arbitration proceeding will commenced in front of the Fair Work Commission and they will determine the authenticity of the application. It has been stated under section 772 of the Fair Work Act 2009 that there are certain grounds under that the employment could not be terminated. Therefore, certain protections have been mentioned under this section and an employee can make an application under the Australian Law if their termination attracts any of the provision (Janda et al. 2014). According to section 772(1) of the Act, if an employee has been absent from his job due to his illness or injury, he could not be terminated from his post. Further, the employee could not be terminated for the reason for being the member of trade union or in case they are not a member of the union. Further, in case where an employer has engaged in illegal works and an employee has filed a case against him, he could not be terminated for the reason. Further, there should not be any discrimination within the workplace. According to this Act, no employee should be discriminated or suffered for their sex, race, colour, creed, age or physical status within the workplace. Further, the maternity leaves are also included under the Act. It has been mentioned in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 that no employee should be subjected to any kind of discrimination in the workplace and therefore, sufficient provisions should be mentioned in the employment agreement. Further, it has been mentioned in the Fair Work act that no employer has the right to insult the employees within the workplace and it should be their intention to protect the interest of the employees.    

However, considering the proceeding and terms of the application, it could not be stated that the protection given by the Act is excessive for the employees. There are certain terms where the capacities of the parties have been discussed. According to this, not every employee is allowed to file a case under this Act. Further, if the termination has proved to be legal and reasonable, no process will be initiated against the employer. Procedural fairness is required to be maintained, where there is no scope of employee benefits. However, there are certain things that make annoyance to the employers (McDonald et al. 2016). It has been held in Warrell v Walton [2013] FCA 291 that the employers are required to obtain court’s permission before appointing external lawyers. According to the main intention of the Australian Law it is the right of the employees to make a claim if their termination from the post is harsh and in this case, they can claim certain remedies from the alleged employers. It is the fundamental rights of the employees to work freely and they should be protected from unreasonable termination from their post. However, it is unreasonable to say that the Act is applied on the employees overly. There are certain restrictions mentioned in Fair Work Act. It has been specifically mentioned under the Fair Work Act that the casual employees are exceeding this category and they could not make any claim for unlawful termination. Additionally, it has been mentioned under the Act that the employees of a small business firm can apply against such termination only if they have served in the office for a period of twelve months (Campbell, Iain and Price 2016). The term small business firm means those firms that have an employment capacity of fifteen employees. It is quite reasonable to understand the fact that every employee has an expectation to be treated fairly by the employers. However, in certain situation, it can be observed that they have to face certain unfair things. In Australia, there are certain legislative provisions that protect the interest of the employees. Certain provisions have been stated in the Act for the permanent employees. It has been mentioned that the National Employment Standards should guide the employment agreement and guarantee should be provided for ongoing employment. Any type of violation regarding the guidance could lead to the infringement to the Act and sufficient steps should be taken against the offender. However, the employees should have to obtain the qualification regarding the same and in this case, no remedies will be provided to the employees if they are unable to meet all or any of the requirements.

Protection to the employees

There are certain other requirements mentioned under the Act where it has been specifically mentioned that the employees could not make an application for the unfair dismissal from their post. The first requirement is that the employees should have to serve for a period of six months continuously. Further, in case of small business employee, the employment term should be 12 months consecutively. In addition, it has been mentioned that the employee should not earn $138,900 or more per annum and in this case, the employee will not get any chance to make any claim for being discharged from their post illegally or unfairly. There are certain provisions mentioned in the Act for the casuals and contractor. It has been mentioned that all the contractors who are working on fixed terms will be unable to make any claim under the Provision of unfair dismissal (Regan, Laura and Lee 2015). Concurrently, independent contractors are also excluded from filing any claim under the Act for invalid termination. Further, certain norms are applied to the casual workers. It has been mentioned under the Act that the casual workers who are working on regular basis and do systematic works, can make claim for unfair dismissal from their post. Further, there are certain states employees of certain provisions such as New South Wales, Queensland, Tasmania and South Australia are not covered under the Act and they could not make any claim for the unfair termination from their post. Therefore, it can be stated that not all the employees are a part of the Act and the employees are required to obtain the capabilities to make a claim for the dismissal.  Considering the circumstances, it can be stated that the provision of the provision of unfair dismissal is quite justifiably and there is no exaggeration regarding the protection of the employees. Further, it has been clarified by the Act that in case an employee has given resignation from his post will not be part of the unethical termination and therefore, the claim regarding the Act does not apply in this case.

If it has been stated that the Australian Law protects the interest of the employees on large basis, the statement will be considered as wrong. It is a fact that the provisions of the Act protect the interest of the employees; but there are certain conditions regarding the mater (Senate 2017). The employees have to meet the terms of the Act and there are certain restrictions regarding the issue. Once, the employees are failed to fulfil the terms of the Act, they could not be able to make any claim under the Act. Further, the employees are required to make such claim within 21 days from the date of their termination and no application will be accepted after that specific period of time. 

Justification

Conclusion:

It can, therefore be stated that all the grounds engraved under the Act is quite reasonable and it could not be stated that the provisions are protecting the interest of the employees overly. However, the employers mention certain claims in this case. It has been alleged by the employers that the employees are getting good support in the case. Further, all the provisions of the Act are tends to protect the interest of the employees and there is no such provision for the employers. Further, the fates of the cases are concluded by penalising the employers. Additionally, it has been alleged by the employees that the cost of the proceeding is quite worthless for them, as they are not getting the cost of the proceedings and therefore, they are regarded the money spill as meaningless drainage of money. However, the terms of the Act are quite justifiable and it will not be overrated to say that the ultimate the aim of the Act is to protect the interest of the employees. However, the terms of the Provision of unfair dismissal do not protect the interest of the employees excessively. 

Reference:

Campbell, Iain, and Robin Price. "Precarious work and precarious workers: Towards an improved conceptualisation." The Economic and Labour Relations Review 27, no. 3 (2016): 314-332.

Dang-Pham, Duy, and Siddhi Pittayachawan. "Comparing intention to avoid malware across contexts in a BYOD-enabled Australian university: A Protection Motivation Theory approach." Computers & Security 48 (2015): 281-297.

Davidov, Guy, and Edo Eshet. "Intermediate approaches to unfair dismissal protection." Industrial Law Journal 44, no. 2 (2015): 167-193.

James, Natalie, and Fair Work Ombudsman. "Commonwealth of Australia." (2015).

Janda, Monika, Melissa Stoneham, Philippa Youl, Phil Crane, Marguerite C. Sendall, Thomas Tenkate, and Michael Kimlin. "What encourages sun protection among outdoor workers from four industries?." Journal of Occupational Health 56, no. 1 (2014): 62-72.

Ling, Lee Sook, and Guru Dhillon. "Managing Employment Dismissals in Malaysia and England–A Legal Guide." Jurnal Pengurusan (UKM Journal of Management) 52 (2018).

McDonald, Paula, Paul Thompson, and Peter O'Connor. "Profiling employees online: shifting public–private boundaries in organisational life." Human Resource Management Journal 26, no. 4 (2016): 541-556.

Regan, Laura, and Candice Lee. "Workplace law: Review of the fair work act: What will change?." Proctor, The 35, no. 4 (2015): 38.

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

Ross, Andrew. "Workplace law: Abandonment clauses abandoned FWC updates six modern awards." Proctor, The 38, no. 3 (2018): 34.

Senate. "Corporate Avoidance of the Fair Work Act 2009." (2017).

Southey, Kim. "Unfair dismissal for Australian workers: the hundred-year journey." Asian Academy of Management Journal 20, no. 1 (2015): 147.

Sutherland, Carolyn, and Joellen Riley. "Major court and tribunal decisions in Australia in 2015." Journal of Industrial Relations 58, no. 3 (2016): 388-401.

Warrell v Walton [2013] FCA 291

Witt, Katrina, Allison Milner, Amanda Allisey, Lauren Davenport, and Anthony D. LaMontagne. "Effectiveness of suicide prevention programs for emergency and protective services employees: A systematic review and meta?analysis." American journal of industrial medicine 60, no. 4 (2017): 394-407.  

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