There are a number of ways in which unfair dismissal can occur, and Fair Work Australia will consider that a person has been unfairly dismissed if it is satisfied:

· the employee has been dismissed, which can include constructive dismissal;

· the dismissal was harsh, unjust or unreasonable, and considerations can include whether there was a valid reason for the dismissal, or whether the employee was informed of the reason, and provided with a chance to respond;

· the dismissal was not consistent with the Small Business Fair Dismissal Code;

· the dismissal was not a case of a genuine redundancy.

The terms and conditions within an employment contract can be derived from a number of sources which may include:

>> the terms within a written or oral, express agreement;

>> terms implied by law relating to the relationship between the employer and employee;

>> the duties of fidelity and good faith;

>> terms implied from the custom or practice of the business or the particular industry.

Upon the conclusion of the bargaining process and a draft agreement has been created, a number of steps are to be followed to ensure the validity of the agreement.

>> Explanation of terms: the terms of the agreement and its effects are to be explained to employees, and must be provided in the appropriate manner;
>> Voting on the agreement: the agreement must be endorsed by employees via a vote, and the vote must not occur until at least 21 days after employees were provided notice of their representative rights. During the seven day period before the vote, the employer must provide a copy to employees of the agreement and any other material incorporated by reference in the agreement. Additionally, information of the time of the vote, the location, and the voting method to be used must also be provided.

>> Making the agreement: an agreement is made when a majority of employees vote in favour for the agreement, however, the process will differ depending on the type of enterprise agreement:
>> single-enterprise agreements (single employer or a joint enterprise)

>> multi-enterprise agreements (at least two employees that are not single interest employees

>> Greenfields agreement (one or more employers make a proposal for an enterprise agreement, but have not engaged with employees. Greenfields agreements are agreed between the employer and unions.

An application will then be made to the FWC for approval. For an enterprise agreement to receive approval from the FWC, it must consider a number of requirements, such as the agreement were genuinely made with those involved, and that it satisfies the “better off overall test” for example.

In trying to ascertain whether or not an employee is a contractor, a useful gauge is to look at the relationship between the employer and employee with some of the following factors which may be indicative of a contractor:

· whether a written or oral agreement exists;

· the level of direct supervision in relation to the work undertaken;

· evidence of a separate business.

Generally speaking, employees are deemed to be an agent of the principal employer and will be paid for the provision of labour, and as a consequence, employees will usually be engaged under a contract of service. In contrast, contractors are usually independent actors with employers having vicarious liability for the actions of a contractor, and as a consequence, contracts will usually be engaged under a contract for services.

The general rule of thumb for contractors is that such employees are usually asked to perform a particular assignment, or to produce a particular result, with payment tied with the completion of the assignment, or achieving the desired result.

In trying to establish whether a person is a contractor or an employee, the following factors will generally be considered:

· if the functions, or part of the functions, can be delegated or subcontracted;

· the person who gives the instructions relating to the work;

· the nature of the instructions relating to the work; and

· the freedom of action in the performance of the work.

Some other indicators that may point to a person being a contractor is, whether they own or maintain the tools or equipment required to undertake the work, whether there is a chance for profit, or alternatively, a risk of loss, and whether an invoice is provided to the other party upon the carrying out of the specified work.

In contrast to the ‘supply of necessities’, the courts tend to construe the concept of ‘benefit’ more narrowly, as a consequence, when assessing whether the contract is beneficial to the child, a balance between the advantages and disadvantages of the contract will generally be looked at. Furthermore, the contract will be looked at as a whole and the circumstances surrounding each individual case will also be looked at to see if the contract is a benefit to the minor.

Although, a contract of employment may be considered as benefitting a child if either it provides a means for self-support, or provides a means for gaining instruction or education, thus, allowing the child to earn a living via a trade or profession may be some of the relevant factors.

Before exploring deeper into when the notice is not required, it’s worth taking a look at the notice requirements as set out in the Fair Work Act 2009, which is as follows:

Employee’s period of continuous servicewith
the employer at the end of the day the notice
is given
1 Not more than 1 year 1 week
2 More than 1 year but not more than 3 years 2 weeks
3 More than 3 years but not more than 5 years 3 weeks
4 More than 5 years 4 weeks

It’s worth pointing out that the notice requirements may be greater than what is set out under the Act, the relevant modern award, enterprise agreement or what the contract specifies. Furthermore, the NES does allow for an employer to make payments in lieu of the notice requirements as long as the payment is at least equal to the full rate of pay the employee would have received if they had continued working up until the notice period. However, for employees who have been employed for a certain amount of time and are casual, the notice requirements may not be applicable under the NES.

In Thomson v Orica Australia (2002) 116 IR 186; [2002] FCA 939, the Federal Court found that the respondent had engaged in direct discrimination after an experienced account manager who upon returning from maternity leave, was offered a position with a similar salary and title, but in a smaller division with less valuable clients. The applicant had an expectation of returning to the same role she held prior to taking maternity leave, and in addition, no reason or explanation was provided as to why there was a change in nature of the applicant’s role. Interestingly, the respondent also had an explicit policy that allowed employees who took family leave, to return to their previous position, or a comparable position if the role no longer exists.

The applicant eventually abandoned her role and lodged a complaint stating that the actions from her former employer amounted to a repudiation of the contract of employment. Ultimately, the Federal Court agreed with the applicant that the employer had repudiated the contract and although a comparable salary and title was provided upon the applicant’s return, this did not however change the fact that she was given a position that was lower in status when taking into account the tasks, duties and responsibilities.

Furthermore, the Federal Court also found that the respondent’s demotion of the applicant amounted to less favourable treatment which was in contravention of the Sex Discrimination Act 1984 (Cth). Allsop J, ruled that the discrimination was unlawful and the applicant was treated less favourably on the grounds of her pregnancy and her sex and his Honour went on to say:

“A physical characteristic that appertains generally to women who are pregnant is that the birth of the child necessitates some confinement and so some inability to work or undertake duties whether in paid employment or otherwise. In some cases the relevant period of time may be short. However, generally, there will be some inability to attend to a usual occupation and so some requirement for leave from that occupation. To that extent, leave, that is absence from a woman’s usual occupation, generally occurs and so can be said to be a characteristic that appertains generally to pregnant women. It is thus able to be said that the need to take, and the taking of, some ‘maternity leave’ is a characteristic of pregnancy… Thus the applicant had demonstrated unlawful discrimination…”

If an employee is injured carrying out their duties, and the work undertaken was a significant contributing factor towards the injury or disease suffered, a worker may be able to sue for damages provided they are able to show that an employer was negligent.

However, it’s important to note that most employees will have basic WorkCover benefits available to them in the form of weekly payments and medical treatment, even if the injury was due to their own actions.

Using s 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act) as our guide, the primary duty of care for managing workplace health and safety risks rests with anyone conducting a business or undertaking, therefore, such an entity must ensure so far as is reasonably practicable, the health and safety of:

>> employees engaged, or caused to be engaged with the employer; and

>> employees whose activities in carrying out the work are influenced or directed by the employer.

Employers must ensure, so far as is reasonably practicable, that the health and safety of employees is not put at risk from any work carried out. So, what does ‘reasonably practicable’ mean? Turning to s 19(3) of the WHS Act, reasonably practicable can entail the following:

“(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
(4) If:

(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and

(b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available,

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.”
Under both the WHS Act and the Work Health and Safety Regulations (the WHS Regulations), a Code of Practice is in place (the Code) and applies to any type of work and place of employment covered by the WHS Act.

The Code covers:

the physical work environment such as the workspace, lighting and ventilation;
facilities used by employees such as toilets, drinking water, washing and dining areas, change rooms, lockers and sheltered areas;
remote and isolated work;
emergency plans.

For the most part, employers may make changes to the position and remuneration without the need to vary or terminate the contract – but it is a matter of degree. In ascertaining whether or not the employer has the latitude to make the changes without varying or terminating the contract, rests on the facts of each individual case. So how much change to the contract may necessitate in the varying or terminating of the contract? In Martech International Pty Ltd v Energy World Corporation Ltd (2006) 234 ALR 265 at 162, French J said the following: “A contract under which a person is employed, whether directly or through a corporate entity controlled by that person, may be discharged by sufficiently significant changes to the duties and/or the remuneration of the person so employed.”

As French J noted in Martech, the change has to be “significant”, and other case law has generally reinforced this requirement.

For casual employees to receive protections, they must have worked for an employer for the ‘minimum employment period’ referred to in ss 382-383 of the Fair Work Act 2009 (the Act). Under the provisions of the Act, the minimum employment period is six months, unless the employer has fewer than 15 employees (small business employer), than the minimum employment period is 12 months (s 383(b)).

If the casual employee has fulfilled the minimum employment period criteria, they then must have been employed on a regular and systematic basis during the period of service, and the employee must also have had a reasonable expectation of continuing employment on a regular and systematic basis as outlined in s 384(2)(a) of the Act in order to receive the unfair dismissal protections.

Generally, a contract of employment will have both express and implied obligations to ensure the employer’s confidence. In Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167, Fullagar J said that express and implied contractual obligations protecting confidential information of the employer will (at 190), “depend for their existence and their attributes solely upon the law of contract. They are obligations at common law, although of course equity may act in their enforcement if the ordinary conditions for equity’s intervention are met.”

Although a request to perform acts beyond the function and contractual appointment may not need to be obeyed by the employee, there are a number of matters that may not be specified in the contract of employment. The existence of the managerial prerogative provides scope for the employer to give directions to an employee that must be obeyed. However, the orders must be reasonable, as was noted by Dixon J in R v Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan (1948) 60 CLR 601 where his Honour said (at 601-622):

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon it being reasonable… what is reasonable is not…determined…in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.”

However, determining what is reasonable will be dependent on the facts of each individual case.

In instances where an action of suspension is not available to an employer through contract, award or statute, yet the employer still undertakes such an action against the employee, the action may be considered as a breach of contract and the employee may have the option of terminating the agreement.

An action of suspension that breaches an applicable award may provide the employee an opportunity to seek a remedy through the courts to recover any wages lost during the period of suspension. Additionally, damages for breach of contract may also be a remedy under certain circumstances.

An employment contract is a legally binding agreement between an employee and their employer. An employment contract can give rise to a conflict in written communication, verbal communication, or a combination of both. The contract will contain all the responsibilities as well as the rights of an employee as well as the employer’s obligations towards the employee.

If one party commits a serious or a fundamental breach of contract either party may bring an employment contract to an immediate end. If such a breach has occurred, it may allow an employee to resign without giving any notice, or an employer to terminate an employee’s contract without paying any notice.

Reasonable notice will depend on the circumstances of each contract. However, some of the factors to keep in mind include the length of service, the salary, the seniority of the position, as well as the length of employment. In some cases reasonable notice can be as long as 12 months so it is therefore important that you seek legal advice about your reasonable notice entitlement.

It is up to your employer to prove that they did not take any adverse action against you as a result of you exercising your workplace right. It is in your best interest to work with an employment lawyer to ensure the best possible outcome.

If it was found that your dismissal was harsh or unjust, your employer may be ordered to reinstate you and pay compensation not exceeding 26 weeks’ pay.

An employee can be considered to be redundant when the employer decides that the employee’s job is no longer necessary. This means that the job will be undertaken by anyone. The job may go for a number of reasons. But the key reason is that the job is no longer to be performed.

Your Employment Law Team

employment lawyer Jim Parke
Jim Parke
Dennis Wawra
Tahereh Rouhipour
Gaji Rajapakshe

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