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Law of unlawful dismissal

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            Two-faced Rudd’s Unspoken Policy

                                             —Workers Should Follow Apparently Unlawful Directions

Many workers have been legally dismissed due to their complaints to their employers, unions and government’s agencies including ombudsman against workplace illegalities. Fair Work Online on 13 13 94 and Fair Work Australia on 1300 799 675 tell workers they cannot claim unlawful dismissal when they are dismissed due to their complaints against workplace illegalities.

The Labor leadership declares that a worker have a right to make a complaint. However, when workers are dismissed due to their complaints, the remedy is anything that a Tribunal or Court thinks it is fit. The bottom line is set by a case law, which interpreted the unlawful termination provision of the Fair Work Act 2009. The case law rules that all such dismissals are lawful because workers have failed to complain ‘to a Court or Tribunal’. The fact is that no law allows workers to do so in ordinary circumstances.

The government knows the bottom line set by the case law is in contradiction with its political propaganda. It can request the High Court to decide whether the case law wrongly interprets the unlawful dismissal provision or reword the provision; however, it has done nothing. On the face of the facts, the government prefers to keep the case law and have another face.

The Labor leadership may worry that if the sacked workers are reinstated, it is unfair to the employers because the relationship between the workers and employers have been broken down by the workers.

On the other hand it is unfair to the sacked workers. They follow the law and the government’s propaganda but based on the case law, Courts further ruled that the workers’ claims for legal and constitutional right and obligation ‘[were] instituted vexatiously or without reasonable cause’.

Under the case law, apparently unlawful directions become enforceable directions and have caused unavoidable consequences:

1.   An Occupational Health Safety and Welfare Manager, who raised concerns on serious breaches of legislation relating to occupational health and safety, was legally sacked and replaced, Nylex Industrial Products Pty Ltd v Robert Lynn [2008] AIRC 196. According to this case, people can understand why so many terrible accidents happen at workplaces everyday.

2.   An engineer, who sticked to engineering principles and standards, was legally sacked and replaced, Sapula v ResMed Ltd [2007] FCA 438. According to this case, people can understand why so many accidents and disasters happened.

3.   An accountant, who refused to falsify accounting reports (cook the book), was legally sacked and replaced, Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 (3 June 2005). According to this case, people can understand why their savings in superannuation and other financial products, communities’ and governments’ funding can disappear without any warnings. In this case, the judge characterised the accountant’s complaints against workplace illegalities asonly in the capacity as employee’.The employer’s counsel conceded that ‘the illegality is in fact on the part of the employer’. However the accountant’s claim of unlawful dismissal was struck out and the accountant was ordered to pay the employer’s legal costs.

The workers, who fought their rights in the Courts, are respectful, even though they lost their cases because they not only fought for themselves but also fought for the people, who are victims of unlawful activities of bad employers. -> more

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