Employment Law in Australia - Unfair Dismissal - Research Paper Example

?Employment Law An unfair dismissal is encountered when the employer does not have a fair reason for dismissing one within the context of job performance, or does not follow the correct process when dismissing an employee (Mulheron, 2004). Each and every company has a correct procedure and acceptable protocol that must be followed when dismissing an employee. Such protocols should be followed when dismissing the employee for the sake of fairness. Grounds for dismissal may be justifiable in the view of the employer but the procedure that they adopt may not be appropriate (Hardy & Butler, 2011). An employer may dismiss an employee without undertaking proper investigations in order to understand the exact nature of the perceived misconduct. It may not have been the intention of the employee to depict the scenario that has been adopted by the employer in the situation. In so doing, the employee lacks the forum to explain his or her actions leading to an unfair dismissal that could have been averted had proper investigations be done. Several reasons that employers issue are common grounds for unfair dismissal and infringement of statutory employment rights that each employee is entitled to according to Ford, Notestine, and Hill (2000). A common cause of unfair dismissal is when an employee makes a public interest disclosure (Stewart, 2011) as seen in the case of Andrea who disclosed information that was of public interest but was not necessarily related to the company's operational information. In order to seek fairness in the termination of her employment, Andrea sought to bring a lawsuit against the company in light of common law actions which are lawsuits governed by the general principles of law derived from court decisions. Andrea is allowed to approach a court of law and initiate a lawsuit against her employer in which she will seek to show that her actions were in no way intended to cause harm to the organization but merely to inform her friends about the impending danger that may be encountered when one leaves their valuables near unlocked doors. It is allowed that a case be heard in the civil court before a tribunal that will determine whether the employee had been dismissed unfairly and even if the dismissal was justified, it will determine whether the nature in which it was done was appropriate and fair to the employee. Andrea is allowed in court to demonstrate the fact that the email she sent to her friends was only meant to warn them about the dangers she herself had encountered in her home so that they can take better care of their belongings in their houses. She can also demonstrate that the email was only sent to the members of staff within the company and not to outsiders as a means of trying to warn and protect her fellow staff members out of concern for their safety. It would only be natural for a person to try and warn her fellow staff members taking the lesson out of her own personal experiences. This is a common concept that is employed by any person who has the best interest of others at heart and would wish to be also warned in the same manner. Ideally, she may also have believed that email was one of means she could have used to reach many people within a short time. This may have been the only motivating factor that made her resort to the use of the medium and not any other construed ideologies that the company may have indicated. This is the information that Andrea did not get to share with her employers before she was dismissed; an explanation that could have cleared up issues. The depiction of the colored arm in her email may work against her because it is perceived as a gesture of racism. This may work against her considering that the company has got a specific policy on racism. It has clearly stipulated that one may not display or transmit sexually explicit images, messages or cartoons or email communications that may contain ethnic slurs or anything that may be construed as harassment or discredit others based on their national origin, race, sex, age, disability, sexual orientation, religious, or political beliefs. The depiction of the colored arm can, however, be explained by Andrea as a depiction, not of race, but simply of the arm that she saw at the house. All these issues could be cleared up if an explanation was given by Andrea to her employer as to the nature of the common misconceptions that have been experienced in the management of her case. Andrea may also argue that the reason for dismissal did not have anything to do with the nature of her work in Sage. It could be stated that her duties within the company were carried out in an efficient manner that the situation at hand does not give the employer the right to terminate her employment in such a hurried manner. Often, grounds for dismissal from a company must be related to one's work performance because it is the main reason why employees are often employed (Ford, Notestine & Hill, 2000). In Andrea’s case, it could not be demonstrated that her work performance was poor. As such, the dismissal could not be attributed to her work performance which makes it possible for her to pursue a case of unfair dismissal from Sage. In order to do this, Andrea may approach a lawyer who may assist her with the legal issues related in this case. These lawyers may be hired on a “no win no payment” basis that will cushion her from extra expenses in case she does not win the case against her employer. Through the court case management system, she may bring a lawsuit against her employer, a forum which will allow her to express herself and clear up all the misconceptions. She will get a chance to a fair hearing that will also allow the employer to gain a second perspective on the case. In so doing, she may get some form of relief if the court decides that she has been unfairly dismissed from duty. This must, however, be done in a quickly to ensure that the case gets to court before the end of three months from the time of her dismissal. According to common law actions (Filipp, 2005), she may be found to have breeched the Internet Email Policy but the manner in which she was dismissed may be argued as being unfair considering the kind of offense that she has been accused of. It is possible for Andrea to pursue a case for unfair dismissal against Sage and seek compensation. She may get compensation in form of money that will be calculated based on the number of years that she has been employed by the company. She may also receive compensation that is calculated as a result of the total amount of money that she has lost from her employment termination. This will take into account her pension, medical cover, mortgage among other benefits that she would have received had she still been employed. If the court rules that the nature in which she was dismissed was not fair, she may also pursue compensation for any emotional damage that the process may have inflicted on her. The clause in the Enterprise Agreement allowed for provisions that allowed the employer to terminate the employee's employment status without any serious notice provided that they had committed a serious offense. This included a serious breach of policies or procedures or serious or persistent breach of the conditions and terms of employment. In the even that this termination were to be undertaken, the employee would only be entitled to payment up to the time of termination and would not receive any other amounts hence forfeiting all other benefits that would have otherwise been awarded. These enterprise agreements are meant to set out the conditions and terms of employment between an employee and their employer and are negotiated by these parties through collective bargaining in good faith primarily at the enterprise level (CCH Australia Ltd, 2010). These agreements also contain information about the deductions of wages for any purpose authorized by an employee covered by the agreement. As such, these enterprise agreements are not meant to infringe the rights of the employee but simply are aimed to foster relations between the two parties and settle any disputes between them as noted by Twomey (2009). These enterprise agreements may not contain information that may be discriminatory against any member of staff or include terms that confer an entitlement or remedy in relation to unfair dismissal before the employee has completed the minimum employment period (CCH Australia Ltd, 2010). Of importance is that these agreements should not contain any terms that excludes or modifies the application of unfair dismissal provisions in a way that is detrimental to, or in relation to, a person. In light of this, Andrea can initiate legal proceedings against Sage in relation to their enterprise agreement to challenge its validity in relation to the Fair Work Act of 2009. There are various sections that go against the requirements of this Act which she can challenge in order to seek reprieve for her dismissal. Sage's enterprise agreement is not fair on the part of the employees as it does not clearly specify the processes to be taken in the event of a serious breech of its policies. It does not allow for any investigations to be carried out but simply indicates that employees' contracts are to be terminated in the event of a serious breech. In so doing, Andrea would seek to prove that she was not only unfairly dismissed but also that Sage's enterprise agreement is in contravention of the provisions of the Fair Work Act of 2009. According to the enterprise agreement that Sage had, there are sections that would provide for an unfair dismissal to be modified and covered up as a breach of contract. In considering whether a dismissal is unfair or unjust, there are several factors that are taken into account. These include whether there happened to be a valid reason for the dismissal in regard to the employee's capacity or conduct, and whether the worker was informed of that reason and given chance to respond to allegations. It also includes the aspect of unreasonable refusal by the organization to allow the employee to have a person present to assist in any discussions that may be held relation to the dismissal. Andrea can also argue her case in a manner that will bring attention to the fact that Sage only informed her of her breach of contract and then terminated her employment without allowing her to defend herself. She was not given an opportunity to respond to the matter and was also not allowed to have a person to assist her with discussions to the management at Sage. This could have been a lawyer or solicitor who may have taken up the case with management and enabled the company to hear her side of the case. In the event that the management believed that she had acted in breach of the company's policies, she could have been represented by a lawyer to inform her of her rights to some form of compensation. The other term in Andrea's contract stated that all the company's policies, whether written or verbal, as varied from time to time are deemed to form part of the contract. This meant that there was a contract that the employee would have to sign before starting to work; a contract that had provisions for the addition of any other company policies at any time apart from those featured in the original contract. According to the Fair Work Act of 2009 (Hor & Keats, 2010), any modifications to the original contract that is given to employees must be done in consultation with workers. Furthermore, it must be done such that it does not interfere or curtail the rights of the employees, giving them the opportunity work in an environment that fosters good relations between the employee and the employer. By allowing that modifications on the contract should be done at any time, the employees work in an unsteady environment that may see their employment status being terminated at any time as a result of their perceived misconduct. The employees work in a strained environment – an environment that does not allow them to interact freely not only with their employer but also with others within the organization. It also allows for situations that would otherwise be termed as unfair dismissals occur because it is protected by the presence of such clauses in the contract. Andrea can argue her case in court detailing the open ended manner in which Sage has allowed its contracts to be defined enabling them to have grounds for dismissal of employees in a manner that would otherwise been deemed unfair under the Fair Work Act of 2009 (CCH Australia Ltd, 2010). She can also state that any modifications, additions or deletions to the contract is also automatically deemed to be part of the contract and are not placed under the consideration of employees for approval. This depicts a situation that lacks the involvement through consultation of employees in the organization in contravention of the Fair Work Act of 2009. Sage also had a staff manual that contained the eight policies of the company and included the Internet email policy that governed the use of email facilities within the company. It stipulated that the primary purpose of email with the organization was to facilitate Internal and external business-related communication and that private, personal or non-business use should be allowed to a limited extent. It is indicated that Andrea used the email services in the company for personal use because she sent an email to all the staff at Sage outlining all the facts that had occurred during her meeting with her friends. She only meant to send out a warning signal by describing the events that had occurred that day in the manner that she had witnessed them, and alert people of the risk of leaving their valuables near unlocked doors. It is not indicated that she had done this on any other occasion as this would have already led to her dismissal allowing us to conclude that this was the first time she had sent such an email to other staff members in the organization. According to the Internet and email policy that the company had, the use of Internet and email within organization for personal use should be allowed only on a limited basis. This could be interpreted in a manner that suggested that it could be done but not every so often. In this respect, Andrea can argue that this was the first time she had sent such an email and it would only be harsh to dismiss her based on a one time offense, an offense on which she had not received a warning. According to the Fair Work Act of 2009 (Hor & Keats, 2010), employees have a right to receive a warning at least once for any offense that they have committed before being reprimanded for their actions. Alternatively, they have the right to fair representation and a forum to argue their case before the management board in order to establish the reasons for committing the perceived offense. According to the Internet and email policy, one must not display or transmit sexually explicit images, messages or cartoons, or email communications that may contain ethnic slurs or anything that may contain ethnic slurs or any information that may be construed as harassment or that discredits others based on their race, national origin, sex, sexual orientation, age, disability or political beliefs. The only reason that the management considered Andrea's email disturbing is because of the depiction of a “colored arm” that was assumed by her employer to be a depiction of a black man being involved in the theft thus denoting racial prejudice. The management did not find the other parts of the email disturbing and only went to terminate Andrea's employment based on her interpretation of the events that occurred at her friend's house on the day that the theft occurred. Andrea can argue out her case and appeal to the reasoning of the court to allow her a forum that will enable her to explain what she meant by the “colored arm”. She can explain that the term “colored” could have been used to denote a type of garment color that had been worn by the thief at her friend's house. She could also state that she could draft another email that would serve as an apology and retract the use of the term colored while explaining what she really meant. Alternatively, she could also demand compensation for the management rushing to conclusions about the contents of her email without seeking further clarification or even demanding an explanation from her before dismissing her. According to the Fair Work Act of 2009 (CCH Australia Ltd, 2010), Andrea has the right to bring a legal case against Sage for unfair dismissal considering that she has not been given a chance to represent herself and explain her case before the management board. Instead, she has been summarily dismissed without compensation, a case that she is likely to win. References CCH Australia Ltd., 2010, Australian Fair Work Act 2009 with Regulations and Rules, 2nd ed. CCH Australia Limited, Sydney. Filipp, M., 2005, The practical Guide to Employment Law, Aspen Publishers. London. Ford, K., Notestine, K. and Hill, R., 2000, Fundamentals of Employment Law. American Bar Association, New York. Hardy, S. and Butler, M., 2011, European Employment Laws: A comparative Guide, Spiramus Press Ltd, London. Hor, J. and Keats, L., 2010, Managing Termination of Employment, A Fair Work Act Guide, 2nd ed. Aspen Publishers. London. Mulheron, R., 2004, The Class Action in Common Law Legal Systems: A comparative perspective, Hart Publishing, London. Stewart, A., 2011, Stewart's Guide to Employment Law, Federation Press, New York. Twomey, D., 2009, Labor & Employment: Text and Cases, Cengage Learning, London. Read More