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Law of unlawful dismissal

Ruling case
High Court's response

Attorneys-General's responses

Prime Minister's Department's responses
Department of Employment's responses
Senate's response to petition
Senate's response to submission

Other websites and radio published the matter


Case Applied the Ruling Case

Damien made a complaint in writing to the Employment Ombudsman about his wages and conditions of employment, and believed that he was sacked soon due to his complaint (Damien Warren Weier v Modern Alarms - [2007] AIRC 432 (4 June 2007)). He filed an unlawful dismissal claim to the Industrial Relations Commission. A commissioner told him that he could not make such claim because the Ombudsman was not a Court or Tribunal; to meet the threshold of claiming unlawful dismissal, he had to file a complaint to a Court or Tribunal before his dismissal.

It was out of Damien’s imagination that he followed the Government’s advice, but the Court did not uphold. The Government says workers can complain about their underpaid wages etc, so he filed his complaint. The consequence is that he got even worse—being sacked.

The Government has never said: to prevent retaliatory dismissal, workers have to file complaints to a Court or Tribunal before the filing of complaint to the Employment Ombudsman or whatsoever. However, the Court and the Commission hold the Government in effect states that.

In response to the Court’s interpretation, the Government states the Court’s interpretation is incorrect, but the Government cannot do anything about it.

Under this kind of circumstances, except submitting to humiliation, what a vulnerable worker can do? Maybe he will never believe in the Government’s propaganda. Is that what the Government really want?

A study conducted by Curtin University of Technology in 2007 found workers believe if they are seen as rocking the boat they might be ousted..

Facing the reality, should Damien ask himself whether he was misled or brainwashed, or bewildered, and did something at the wrong place and at the wrong time? Has he learned his lessons and changed his attitudes toward workplace illegalities?

  • When in Rome, do as the Romans do.
  • Follow the boss, not both of the laws and the Government’s propaganda.
  • The boss can sack him but the Government cannot reinstate him.

Legal Advices

To avoid retaliatory dismissal, legal advice for workers is that you have to follow all directions from bosses including apparently unlawful directions.

According to the cases above, an employer can legally sack an employee due to a complaint against the employer. Put another way, employees have no right to complain at all. It flies in the face of the Governments’ assertions summarised below.  

Government’s Requests and Propagandas

 The Government asserts (on documents, websites, news releases, etc):

  • it is a workplace right to be able to make a complaint,
  • it is against the law for the employers to threaten to dismiss employees for making a workplace complaint, and
  • it is unlawful to sack a worker due to the filing of a complaint against his or her employer involving alleged violation of laws,
  • the Government has no tolerance for conduct which breaks the law.

Summary

No doubt the conflict between the Government information and legal advices leave employees just as confused and upset as the employers. To clarify the confusion, prevent both conflict and frustration and let both worker and employer make fully informed decision with respect to: 

  • workers’ right to make complaint,
  • bosses’ right to manage their businesses,

a public debate is needed. The Government may get ideas on how to solve the problem through the debate.

More cases applied the ruling case.