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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

The Responses from the Department of Employment and Workplace Relations

On 18 February 2008, Julia Gillard, the Deputy Prime Minister and Minister for Employment and Workplace Relations, wrote (letter of 18 February 2008 from the Deputy Prime Minister):

a.      the government could ‘take no further action’ against the case law;

b.      ‘the transitional legislation will not include any amendments to the unlawful dismissal laws;

c.      the government would ensure the new workplace legislation would be ‘fair, flexible and productive’

On 29 April 2010, Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman, wrote on behalf of the Deputy Prime Minister in response to the inquiry that ‘for the time being, all Australians have no right to complain about workplace illegality at work in accordance with a ruling case’ (email of 25 March 2010 to the Deputy Prime Minister) (Mr Furlong’s letter of 29 April 2010).

(The recent inquiry was made in response to the call of Mr Karl Bitar, the national secretary of ALP, who requests ALP supporters to inform voters of the government’s policies. Mr Bitar’s office was not sure whether or not the case law was a government’s policy, and advised that the inquiry should made to the department of employment and workplace relations. The department asserted all case laws are parts of the governments’ policy.)

Mr Furlong did not reply the question whether or not the case law is a government’s policy. He did not even mention or refer to the case law. He advised at the end of his letter: ‘for making an employment-related complaint, please contact Fair Work Online on 13 13 94. On 13 13 94, there are five options, but no option for unlawful dismissal. The unfair dismissal option transfers the phone to Fair Work Australia. Fair Work Australia advises that a worker cannot claim unlawful dismissal because no unlawful dismissal provision in the Fair Work Act 2009.

Section 772 of the Fair Work Act 2009 is an unlawful dismissal provision. The government denies that.

Why does the government deny the existence of its policy? Implicitly, the government knows that the policy, section 772, has problem. It is in contradiction with the government’s propaganda.

Why does not the government do anything to correct or improve its problematic policy? Obviously, the government wants to keep the problematic policy as it is, and misleads or deceives the general public and employees.

Mr Furlong conceded to the effect that the case law undermines unlawful termination provision, subsection 772(1)(e) of the Fair Work Act 2009; therefore, workers can no longer claim unlawful dismissal under this provision. Nevertheless, he argued: ‘the Fair Work Act now includes a provision, separate (from) the unlawful termination one, which specifically protects employment-related complaints to whoever they are made.’ He failed to specify which provision it was. Fair Work Australia’s advice is that the Court proceeding under section 340 of the Fair Work Act 2009 is equal to the previous unlawful termination provision.

If the case law is set aside the main differences between section 340 and subsection 772(1)(e) are:

a.      s 772(1)(e) request an employer to prove that its employee’s complaint is not a reason at all to sack or retaliate the employee, while s 341 and 342 reverse the request, that is, an employee to prove that his or her complaint is the reason of the termination or retaliation;

b.      reinstatement is the remedy under s 772, but a spare remedy under s 341, 342 and 539-545. (Under s 170CH of the Work Choice 2005, even though reinstatement is the first remedy, almost no employees were reinstated.)

On the face of it, the government’s attitude is that it is unfair to an employer to reinstate an employee after the breaking down of their relationships. The Act’s name is Fair Work Act. The government’s concern is whether a workplace relation is fair to the employer, not whether the employer has broken the laws or whether the employee has a right to follow the law. Section 341 of the Fair Work 2009 particularly disallows a union to push an employee to exercise worker’s right.

The remedies clearly show that the government’s intention is that even though an employer breaches s 341 and 342, a Court or Tribunal should first consider other remedies, not reinstatement. Put another way, once a workplace relation breaks down, a Court or Tribunal should not try to re-establish the workplace relation under the law, a Court or Tribunal should try all methods to terminate the relation under the Fair Work Act 2009.

From both viewpoints of employees and employers, the government should clearly inform workers that they should follow all directions given by their employers, and the employers take full responsibility of their employees’ activities. I kind of understand the government’s dilemma—it fully supports the employers’ authority in workplaces but on the other hand is too embarrass to declare that its policies (laws) are just for political propaganda, nothing else.

While the government takes employers’ authority more seriously than the authority of the laws and regulations, for fairness, the government should clearly inform workers its attitude. (email of 3 June 2010 to the Deputy Prime Minister)