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Law of unlawful dismissal

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High Court's response

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The law of unlawful dismissal

a.       The unlawful dismissal Law:

Sub-section 170CK(2) of the Workplace Relations Act 1996, substantially identical to 659(2)(e) of the Workplace Relation Act (Work Choices) Act 2005 and 772(1)(e) of the Fair Work Act 2009:

‘an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(e) 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;’

b.       Interpretation of the unlawful dismissal law

The unlawful dismissal law above was from the Termination of Employment Convention 1982 of the International Labour Organization after Australia Government signed the Convention. In ‘Protection against Unjustified Dismissal’ Report of Committee of Experts, International Labour Office, 1995, pars 115-117, the interpretation of the law 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 ‘denounce’. The Full Court of Federal Court in the principal decision referred to this interpretation but did not quote any part of it.

c.       Covering Clause 5 of the Australian Constitution:

'This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State;……'