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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 Senate’s response to the petition

The petition was presented to the Federal Senate (the petition to the Senate). The Senate Standing Committee on Employment and Workplace Relation replied (the committee’s letter page 1 and 2):

a.     the ‘petition present this case as a “constitutional issue"’,

b.      “The committee does not believe that any constitutional connection has been established. It does not arise in the unfair dismissal case brought by Hilda Zhang in the Federal Court’,

c.      ‘The tenor of judicial comments on the cases’, ‘suggest that no recommendation the committee might make to the Senate urging a plea to the Attorney-General would succeed’,

d.     justice did not deny the worker.

The committee erred in fact in finding Hilda Zhang’s case is an ‘unfair dismissal case’. The primary court stated that the case is unlawful dismissal case at paragraph 1 and 18 of the primary judgment Zhang v The Royal Australian Chemical Institute Inc. [2004] FCA 1392 (29 October 2004). The Full Court applied the law of unlawful dismissal at paragraph 26 of the Full Court’s judgment Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 (3 June 2005). The courts never found the case was an unfair dismissal case. Why did the committee fail to rely on the courts’ findings and the petitioners’ claim that the case is an unlawful dismissal case? The only possible reason is that the committee wanted to conclude that ‘the case’ has no ‘any constitutional connection’ and believed that it was too hard to deny the constitutional connection if accepting the fact that the case is an unlawful dismissal case.

There is no doubt that committee made that error deliberately because the petitioners clearly pointed out the error but the committee’s secretary and members refused to make any comments on the petitioners’ questions (the communications between the petitioners and the committee).  

Implicitly, the Committee held that the employers have the right to enforce apparently unlawful direction and to despise law, and that the employees have to follow the apparently unlawful directions given by their employers and ignore the laws passed by the parliaments.

Why did the committee not tell its true reason? If the committee told its true intention, there would not have been any reasons for the government and parliament to make any laws request employees to follow. The government and parliament is misleading people by denying the fact and saying ‘The Rudd Government has no tolerance for conduct which breaks the law, whether it be unlawful industrial action or underpayment of employment’ (the Rudd Government’s media release).