Unfair Dismissal - Lesson Learnt So Far
There happen to be many decisions issued by Fair Work Australia (FWA) since the advent of these Fair Work Act
. These decisions indicate that FWA won't necessarily deal with matters in the same way as the Australian Industrial Relations Commission. We have noticed particular themes in FWAs decisions and set out to you personally below summaries of A few of the far more interesting judgments as well as the trends they indicate.
1. FWA is Producing it more challenging to lodge an unfair dismissal application out of time
In Robert Lim v Downer EDI Mining [2009] FWA 457 (2 October 2009), Commissioner Williams rejected an application made two days outside the 14 day time limit for lodging an application for unfair dismissal, noting the conscious decision by parliament to decrease the statutory time limit by seven days.
Commissioner Williams too noted that section 349(3) of the Fair Work Act 2009 (FW Act) provides that FWA may allow a further period for an unfair dismissal application to be made if It's satisfied that there seem to be exceptional circumstances, a term Which did not appear at the Workplace Relations Act 1996 (WR Act) and suggests a stricter test now exists.
In this case, the employee argued that exceptional situations warranted FWA granting an extension due into the fact of factors which include that he was:
from one the Philippines and engaged on a 457 visa;
unaware of his right to make the application until he sought assistance from the Philippines Consulate the day before the application was Eventually lodged;
not a union member and did not have legal representation; and
more likely to suffer prejudice if the application was rejected simply because he would be deported.
Notwithstanding the arguments outlined above, Commissioner Williams located that the instances of those case were not exceptional and the extension of time was not allowed.
In a subsequent case, Bernadette Shield v Warringarri Aboriginal Corporation [2009] FWA 860 (29 October 2009), Senior Deputy President Kaufman said he would go further than Commissioner Williams stating that in my view, the test is stricter than it is it was under the WR Act.
2. It's a lot more difficult to have legal representation in matters before FWA
The case of Rodney James Rodgers v Hunter Valley Earthmoving business Pty Limited [2009] FWA 572 (9 October 2009) indicates that it will now be more difficult to be represented by a lawyer or paid agent at a hearing before FWA.
Under section 596(1) of the FW Act a person might be represented in a matter prior to FWA only Using the permission of FWA. Such permission might be granted only if:
a. it would enable the matter to be dealt with much more efficiently, taking into account the complexity of the matter;
b. it could be unfair not to allow the person to be represented due into the fact the person is unable to represent himself, herself or itself effectively; or
c. it could be unfair not to allow the person to be represented taking into account fairness between the person and other persons at the same matter.
In this case, Commissioner Harrison refused permission for any law firm to represent the employer in the unfair dismissal proceedings, noting the following reasons:
the Construction, Forestry, Mining and Energy Union had objected in to the solicitors acting to the employer;
the intent of the Parliament (noted in the Explanatory Memorandum in to the FW Act) that FWA operate efficiently and informally and, where appropriate, in a non-adversarial manner. also the Parliaments intention that persons Dealing with FWA would generally represent themselves;
the HR-ER Manager of the employer, who'd otherwise represent the employer, was an skilled industrial advocate; and
the matter was not one And also this required forensic cross-examination or was of a complex nature.
4. Minimum employment period ends at midnight
In Brian Prigge v Manheim Fowles Pty Limited [2010] FWA 28 (7 January 2010) Senior Deputy President Richards clarified the this means of 6 months towards the purposes of these minimum employment period discovered in section 383 of those FW Act. Under the FW Act an employee does not have access to an unfair dismissal answer if they have not done the minimum employment period.
In this case, the employee commenced employment on 26 February 2009 and was terminated at 9.00am on 25 August 2009. The employee argued that in the time his employment was terminated he had accomplished the minimum period of employment, being 6 months at the circumstances.
Senior Deputy President Richards relied on a former decision of the Full Bench of those Australian Industrial Relations Commission in discovering that the minimum employment period must be accomplished immediately just before the beginning of the corresponding day of those sixth month following the date on And this the employees employment commenced. In this case this was to be by midnight on 25 August 2009.
Accordingly, the employee had not done the minimum employment period at 9.00am on 25 August 2009 and did not have access to an unfair dismissal solution under the FW Act.
5. FWA is scrutinising employer behaviour according to the FW Act
The cases of David Quattrocchi v Monsato Australia Limited [2009] FWA 882 (12 November 2009) and Adam James Harley v Aristocrat Technologies Australia Pty Limited [2010] FWA 62 (7 January 2010) remind employers to conduct performance management and termination procedures in a manner that doesn't fall foul of these criteria set out in the FW Act for determining whether a dismissal has been unfair.
The Commissioner in every of those circumstances scrutinised the behaviour of these employer under the following criteria for considering harshness, identified in section 387 of these FW Act:
a. whether there was a valid reason for the dismissal related in to the persons capacity or conduct (including its effect on the safety and welfare of other employees);
b. whether the person was notified of that reason;
c. whether the person was given an chance to respond to any reason related in to the capacity or conduct of these person;
d. any unreasonable refusal by the employer to allow the person to take a support person present to assist any discussions relating to dismissal;
e. if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance just before the dismissal;
f. the degree to And this the size of the employer company could be likely to impact about the procedures in effecting the dismissal;
g. the degree to Which the absence of dedicated human resource management specialists or expertise at the organization would be likely to impact about the procedures followed in effecting the dismissal; and
h. any other matters that FWA considers relevant.
In Quattrocchi, though Commission Lewin considered that includes of the approach Which lead in to the termination of these employee were somewhat lacking, he held that the limitations at the manner and approach by And this the termination occurred did not Ultimately give rise to a conclusion that the termination was harsh, unjust or unreasonable.
In examining the employers behaviour against the above criteria in Harley, Commissioner Deegan noted that the employer was a multinational business that has no excuses towards the deficiencies in method And also this accompanied the constructive dismissal of the employee. She as well identified it beyond belief that the employers HR manager notified senior management that the employees claims that he was being bullied and harassed were unsubstantiated, Despite having interviewed no-one about those claims. Commissioner Deegan ordered the employer to pay the employee the maximum 6 months compensation as reinstatement was discovered to be inappropriate.
by: Serita Gorgone
Impaction In Bearded Dragons Alda Fry Pan 4 Essential Conditions To Be Aware Of Before You Accept Your Offshore Drilling Rig Job Why Air Conditioning Guildford Is The First Choice? To Know About The Simple Undermount Sinks Defeat The Dog Days Of Summer With Air Conditioning The Fair Work Act Changes The Landscape For Unfair Dismissal Great Clicking Ideas About How To Make Money With Facebook 4 Principal Responsibilities Of An Offshore Oil Rig Medic Is Rubber Playground Surfacing The Right Option For My Playground? Timeshare History: The Evolution Configuration Of Asp.net For Increased Productivity Efficiency Of London Air Con Depends On The Efficiency Of Professionals