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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 Ruling Case Law’s Gist

A.       Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 (3 June 2005)

“25      In my opinion, that cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of ‘filing’ a complaint. An employee who complains to his/her employer does not thereby file a complaint. A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal. That is consistent with reading the ‘filing of a complaint’ with the words that follow ‘or the participation in proceedings’, namely ‘against an employer involving alleged violation of laws or regulations’.

“26      The use of the word ‘against’ in s 170CK(2)(e) also means that the complaint must be to someone other than the employer. An employee who complained to the employer about the employer’s conduct would not be filing a complaint ‘against’ that employer.

“27      Schedule 10 to the Act is the Convention Concerning Termination of Employment at the Initiative of the Employer, relevantly described as ‘Termination of Employment Convention 1982’.

“28      Article 5 of that Convention states:

‘ The following, inter alia, shall not constitute valid reasons for termination:

‘(a)      union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;

‘(b)     seeking office as, or acting or having acted in the capacity of, a workers’ representative;

‘(c)       the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

‘(d)     race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

‘(e)     absence from work during maternity leave.’

“29      The Act makes those reasons for termination unlawful. The purpose of the Article is to prevent retaliation against employees who make complaints to third parties against their employers: International Labour Organisation ‘Protection against Unjustified Dismissal’ Report of Committee of Experts, International Labour Office, 1995, pars 115-117.”

(Bold added)

The Full Court referred to the paragraphs in the Report but did not quote any part of it. The gist of the pars 115-117 is:

“Protection of this kind can be established through provisions to protect workers against retaliatory measures when they try to defend their rights under the Constitution, the Labor Code or other legislative provisions. Thus, in a growing number of countries there are legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meet standards set by law, discriminatory practices in employment or non-compliance with occupational safety and health provisions……. ”

Bold is added. On face of the wording—‘denounce’, it is used at workplace. In a Court or Tribunal, the wording ought to be ‘should he allege’. The judges might consider that their misinterpretation of the law could be clear if the above gist of the paragraphs that they referred to were quoted in the judgment. Saying ‘that cannot be so on a plain reading of the subsection’ (par 25 of the ruling case above), the judges clearly knew what the ‘plain reading’ of the law is, but deliberately complicated and twisted the meaning of the law.  

Why cannot the law ‘be on a plain reading’? On face of it, the judges held that the lawmakers do not intent to let workers and general public understand the laws, as workers cannot understand the law or workers can only be misled by the laws, all concerns on the laws should rise to a Court or Tribunal. Put another way, the judges alleged that the lawmakers intended to mislead workers and general public.

The judges’ another ground was “The use of the word ‘against’ in s 170CK(2)(e) also means that the complaint must be to someone other than the employer” (par 26 of the ruling case above). Implicitly, the judges held employees cannot be against their employers’ directions at any circumstances even those directions are apparently unlawful directions. Put another way, the judges held that employers’ directions prevail over the laws and Constitution at workplaces. Are the judges’ beliefs unconstitutional, given all people are bound by the laws under the Constitution?

The fact is that no law allows workers to file complaints to a Court or Tribunal in ordinary circumstances. Therefore, the ruling actually is a misleading ruling.

Seemingly, the judges worried about that their ruling is unconstitutional; therefore, they did not mention the case is unlawful dismissal case at all, even though the primary judge mentioned three times that the case is unlawful dismissal case in his judgment Zhang v The Royal Australian Chemical Institute Inc. [2004] FCA 1392 (29 October 2004).

B.        Zhang v The Royal Australian Chemical Institute Inc (No 2) [2005] FCAFC 187 (5 September 2005)

‘25       In our opinion, the respondent has made out its contention that the appeal was brought vexatiously and without reasonable cause.

‘26       In those circumstances, there should be an order that the appellant pay the respondent’s costs of the appeal. The respondent did not seek indemnity costs. The costs should be paid on a party and party basis.’

The Courts held the worker did not meet the precondition to claim unlawful dismissal. However, the specialist Commission held the worker met the jurisdictional precondition and issued certificate

The Commission’s certificate of the case

Another case: Radha v ING Investment Management Ltd [2008] FMCA 75 (1 February 2008)

’34.     A certificate as prescribed in s.663(5)(a) is a precondition to this Court’s jurisdiction. That subsection also limits the Court in that the certificate under s.650(2) must include a ground of unlawful termination. In this matter, a certificate issued by Commissioner Redmond was tendered and I am satisfied that this requirement has been satisfied.’