TUTORIAL QUESTION 5 – WEEK 6

ISSUE – Advise (a) Rita; (b) Sonam.

  • At common law, Employer’s right to dismiss an employee is essentially determined by K of employment, including any terms the courts are prepared to imply into the K.
  • At common law, there is no recourse to the courts for unfair/unlawful dismissal, only wrongful dismissal.
  • Provisions of WRA (Cth) 1996 significantly alter this common law position. Part VIA Division 3 of the Act deals with the termination of employment at the initiative of the employer, and covers 2 situations:

~ Unfair dismissal: s170CE(1)(a)

~ Unlawful dismissal: s170CE(1)(b)

  • To determine if Rita and Sonam have access to these provisions, we need to ask 3 threshold questions:

1)Are they an ‘employee’?

~ The WRA definition of employee leads us to the common law.

~ Employee has a contract of service.

~ Independent contractor has a contract for services.

~ Control Test in Zuijs v Wirth Bros – What matters is the right to exercise control rather than the actual exercise of that control.

~ The preferred test in Australia is the multi-factor test: Stevens v Brodribb Sawmilling. Court looks to other indicia (apart from control) such as:

* Mode of remuneration – Rita paid by the hour, Sonam paid under Federal Security Officers Award.

* The provision and maintenance of tools – Rita and Sonam required to provide their own bicycle, torch and mobile phone.

* Who controls the place and hours of work – Gladiator Security does.

* Tax treatment – Rita and Sonam need to submit their own GST compliant invoices.

* Delegate Authority – Rita can only do this with Victor’s authority.

* Worker has business/company name – Rita is one of the partners of ‘Security First’.

~ Conclusion:

2)Was termination @ initiative of employer?

~ s170CD(1) WRA requires this.

~ This is satisfied on the facts for both Rita and Sonam.

3)Is the employee “excluded”?

~ Workplace Relations Regulation 30B

~ Most likely one here is if it can be shown to be a K for a specified time or task.

~ For Sonam, he is employed under a Federal Award, but facts do not state whether he earns more than $81,500.

  • Having now established whether or not Rita and Sonam can access the provisions under the WRA, next question to ask is whether their respective dismissals were unfair or unlawful.
  • Distinction between these is because of IR Reform Act 1993 and implementation of ILO Convention: Part VIA Div 3 was a valid implementation of s51(29) Cth Const (External Affairs) Power. However, the provisions in regards to ‘harsh, unjust or unreasonable’ (for unfair dismissal) went beyond ILO’s requirement.
  • Remedies for unfair dismissal under s170CH WRA including:

~ Reinstatement;

~ Re-employment;

~ Compensation.

  • Under s170CE(1)(a) WRA, dismissal will be unfair if it is ‘harsh, unjust or unreasonable’.
  • Section 170CG(3) WRA lists the factors that the AIRC is to have regard to (See page 39 of Study Guide).
  • In addition to Threshold Question 1 above, there is an additional requirement as to who may access unfair dismissal:s170CB WRA sets out which employees have access.
  • The exclusions in Workplace Relations Regulation 30B still apply.
  • Under s170CE(1)(b) WRA, dismissal will be unlawful if it is in one of the three following ways:

1)Failing to give prescribed period of notice – s170CM(1);

2)Dismissing employee for prohibited reason – s170CK(2);

3)Failing to comply with WRA’s redundancy provisions – s170CL(2).

  • In Rita’s case – prohibited reason of her gender.
  • In Sonam’s case – prohibited reason of his race.
  • Remedies:

~ Depends on which 1 of the 3 provisions applies to make the employment unlawful.

~ Reinstatement;

~ Re-employment;

~ Compensation.