The Unfair Dismissal Rule - Math Problem Example

Take Home Exam Name Date Course Question 1 The unfair dismissal rule applies to Mr. Croissant’s business although there are some limitations. He fired the fired the employees based on the application of the rule. A company that has more than fifteen employees cannot be considered as a small business and hence the application of the unfair dismissal rules. Mr. Croissant’s company has more that fifteen employees considering that the simple head count considers all the employees including the casual employees that are employed on regular or systematic basis1. His company has a total of 18 employees and therefore the rule could be applied. According to section 385 (b) of the Fair Work Act, the unfair dismissal occurs when the dismissal is harsh unjust and unreasonable. Mr. Croissants dismissed the two apprentices based on the fact that they were having an affair with his teenage daughter. Although this provides a ground for dismissal it is not applicable in the case of Mr. Croissant. This is because his business does not have any written policy with regards to sexual harassment that could have been used as a basis for the justification of the dismissal. On the other hand, her daughter had not reported of any incidence of sexual harassment by the two apprentices. Mr. Croissant also acted without informing the two apprentices of the reasons for their dismissal which may be termed as unjust. In the case of Frank Moretti v H J Heinz Company Australia Ltd [2012] FWA 1016, FWA, Frank was reinstated after he had been dismissed after suggesting to his manager that he should resign. The court found the reason for his dismissal as unjust, harsh and unreasonable. His reason for the dismissal of the two apprentices are justifiable on the basis of moral but it is not justifiable in terms of the law and hence the violation of the Fair Work Act. According to section 387 (a) of the Fair Work Act, harshness which is a component of unfair dismissal usually occurs if the reason for the dismissal is not valid. The reason that led Mr. Croissants to dismiss the two apprentices were based on personal issues and hence making the reason invalid. He could not bear working with the people who had been involved in an affair with his daughter and this reason is not valid and it amounts to harshness. On the other hand, it is also important to note that he took the action without notifying the two apprentices of the reason for the dismissal. According to section 387 (b) of the Fair Work Act, an employer must notify the employee of the reason for the dismissal. This is because a genuine dismissal gives room for the employee to fully understand the reasons as to why they re being dismissed and to determine if they can take any action or not. Giving the employees a notice of dismissal is also important in terms of the defense of an employer. However, Mr. Croissants does not have any notice that would support him incase of a trial and hence making him liable for the dismissal of the employees. It is also important for the employer to ensure that the employees are given an opportunity to respond to the issues that are being brought against them or the reasons for their dismissal. According to section 387 (c) of the Fair Work Act, the failure of giving the employees an opportunity to respond to the reason for their dismissal is considered harsh and thus making the employer liable for unfair dismissal. The two employees who were dismissed were still apprentices. Crusty who intends to challenge the dismissal has been in service for only eight months. This is means that he has the right to sue his employer for unfair dismissal. This is because the dismissal was not genuine which could have been the circumstance fir the justification of his dismissal from the business. Although Bob who is the fellow apprentice who was dismissed had not taken any action, he has a right to sue Mr. Croissants for the unfair dismissal. His evidence and testimony will also be required in the court if the matter goes to court. According to section 385 (d), a dismissal is not considered genuine if it was not a case of genuine redundancy. Mr. Croissants thus faces a lot of challenges and his case is clearly of unfair dismissal as his reasons do not account to misconduct. However, it is also important to note that there was tension between the two apprentices at work and this could have affected their performance. However, their performance was not affected in any way and hence no valid reason for their dismissal. Although the Mr. Croissants took an important initiative of investigating the problem his action of dismissing the two apprentices was wrong as its basis was not justifiable. Since he is liable for the unfair dismissal, he has to take action in order to settle the mater with crusty who intends to challenge his dismissal. According to section 390 (1), the remedy to unfair dismissal includes compensation or reinstatement of the dismissed employees. However, Mr. Croissants has a problem with the two methods. This is because he does not want to part with money for compensation as it may impact negatively on his revenue as he will also be required to replace the two apprentices which will also be costly. On the other hand, it is he is also uncomfortable of reinstating the two as due to his pride and he cannot stand working with the two apprentices again. However, his choices are limited as he has to make a desperate move in order to avoid the matter from ending to court which may be more costly in terms of the legal fees and the compensation that may be ordered. On the other hand, he may also be forced to work with the two apprentices again incase the courts order the reinstatement. Since he is guilty, the best way is to solve the matter outside the court with Crusty. Since he cannot work with him again due to his personal reason, he should offer a financial settlement. This will ensure that Crusty does not go to court and he does not work for his company again. However, it is important to note that any decision will have a financial implication. Apart from the unfair dismissal challenge that he faces, he should also be worried of being charged with carrying out an adverse action which also carries penalties and fines. According to section 342 of the Fair work Act, Adverse action must not be taken against the employees as it results to the violation of the Fair Act. On the other hand, if the matter goes to court, he could also be found guilty of being against his employees. This too contributes to the adverse action. He may also face charges of discrimination against the apprentices. This is because he is not comfortable with the male apprentices since they are male and could stand the ideas of them having an affair with his daughter. This also has the potential of attracting criminal charges. Question 2 The concept of control is highly emphasized in the common law in terms of defining who an employee is. According to the common law, an employees is anyone who performs a service for you as long as you can control what they have to do and how they will do it2. This clearly indicates that the issue of control has been highly emphasized. The control lies on the employers who determine the work that the employee has to do. This means that although the employee has freedoms and rights in terms of the operations, they have no control over how they should operate. At all times the employees have to make decisions that are subject to the review of the employers. This places the employees in a vulnerable situation that may easily lead to exploitation by the employer. In most cases, the employer can dismiss an employee without notice since they have control over them. The Fair Work Act is thus for the purposes of controlling the excesses that may be of disadvantage to the employees. Unfair work practices are also controlled by the Fair Work Act in Australia. This is also an indication that the Unfair Work Act is aware of the issues of control by the employers which may negatively impact on the employees. The control gives powers to the employers over the employees. This is because control of the employees cannot take place without exercising powers. It is also due to this reason that court cases between the employees and the employers are usually common in Australia. The control over the employees is also emphasized because the actions of the employees may have negative consequences on the employers. The reputation of accompany may be damaged if an employee causes misunderstandings with the clients. Although the employee may be dismissed, the reputation of the company may be damaged. It is also important to note that the misconduct of the employees may also ruin the reputation of the company. This therefore requires the employers to have control over the actions of the employees. Some actions of the employees may also cause the employer to be sued and pay for hefty penalties. This means that little action may be taken against the employees in such incidences. The employers must therefore be in control of their employees for the purposes of avoiding such incidences that may ruin their reputation. In other incidences the employer may be forced out of business through the actions of the employees. It is thus important for the employer to control the actions of their employees. However, this does not mean that the employees do not have any control over their operations. The control of the employees in n organization is limited to their roles. They are supposed to make decisions that are in line with their operations. Heir decisions may not necessarily be correct in the views of the employers and hence the power to overrule any decision that has been made by the employees. The employer is also charged with the responsibility of coming up with the rules and regulations at the work place to guide the conduct of the employees. This should however be in line with section 61 of Unfair work Act so as to protect the rights of the employees in Australia. The control is also emphasized by the common law for the purposes of ensuring that the employers are able to guarantee the safety of their employees. This is because the employers are usually held accountable for the unsafe working conditions. The emphasis on control is also for the purposes of ensuring that the employer can be held responsible for the breach of any law by their companies. Some employees may also be involved in misconduct or misuse of the assets of the employers. Giving the control to the employers gives them the powers to take action against the employees who may misuse the assets of the employers. It is also important to note that the control over the employers is for the purposes of ensuring that an organization is able to conduct its operations in an orderly manner. The control is also responsible for ensuring that the employer is able to work with the required employees who are able to meet their demands. The control that is given to the employers is also for the purposes of ensuring that they are able to regulate their operations and enhance the decision making process. Control given to the employers plays an important role in terms of ensuring that they are accountable to the authorities in terms of submitting any relevant information regarding the employees for the use of the authorities. This may include the salaries which forms the basis of taxation. However, some of the employees have been affected by the misuse of control by the employers and hence the need for regulations. Question 3 The modern award should be for the purposes of ensuring that the working conditions of the employees are improve3. This is a concern that has been raised by Elizabeth who is an employee of Ginnederra Apples Pty Limited which is a constitutional corporation. According to section 134 (1), the modern award should be carried out in a manner that encourages collective bargaining and social inclusion through the workforce participation. The corporation violated this section by its failure to provide adequate notice to all the employees and hence its failure to observe issue of social inclusion and participation of all the employees. Its failure to provide all the employees with a notice is an indication that it was trying to discourage the participation of all the employees. This means that the concerns raised by Elizabeth are genuine and it can be argued in court. On the other hand, the term collective bargaining means that the unions can also be involved in the negotiations. This is because they are in charge of the rights and welfare of the employees. However, the corporation refused to involve the unions is also an indication that the corporation had sinister motives and was not acting in good faith. This therefore makes it eligible for a court case to address the issues. Elizabeth together with the other employees therefore has a right of refusing to honor the negotiations and demand for a fresh negotiation with the corporation in the presence of their union leaders. The number of working hours has also been increased in the proposed modern award. This contravenes section 62 (1) of the Fair Work Act that provides for a maximum of 38 working hours per week for the full time employees. This indicates that the modern award has contravened the national employment standards. This is not acceptable according to the Fair Work Act. According to section 137 of the Fair Work Act, the contravention of the National employment standards renders the modern award ineffective. This also means that the concerns that have been raised by Elizabeth should be looked into as the rights of the employees may end up being violated if the modern award is implemented. On the other hand it is also important to note that the modern award is meant to improve the working conditions. However, Elizabeth raises an issue with the proposed modern award which she claims the current modern award has more benefits to the employees as compared to the proposed. This also means that the employees will loose their current privileges should the modern award be implemented. According to section 138 of the Fair Work Act it is important for the terms to include the issues that will enhance the modern award. The terms that are included in the proposed modern award do not represent this and it should not be accepted due to the negative implications that it may have on the workers. The flexibility of the modern award is important in terms of ensuring that the needs of the employees as well as the concerns of the employers are met. According to section 144 of the Fair Work Act, flexibility is important in terms of ensuring that the genuine needs of the employees as well as those of the employers are met. This is an important aspect that is lacking in the modern award that has been put forward by the corporation. This is because the corporation is not willing to listen to the concerns that have been raised by Elizabeth. Instead, the corporation is trying to impose the modern award on the employees which is against the Fair Work Act. In the case of Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA, some employees were coerced to sign the flexible arrangement which was not beneficial to the employees. The company was ordered to pay a penalty of $ 25,000 and it was also ordered to compensate the employees. It is also important to note that it is the responsibility of the employers to ensure that they provide an environment that promotes the good working relationship with the employees. However, the failure of the corporation to do this through imposing unacceptable term is undermining a good working relationship with the employees. According to section 146 of the Fair Work Act a dispute resolution procedure should be included in the terms of the modern award. This is lacking in the proposed modern award and hence its inability to solve the disputes that may arise with the employees. This will impact negatively on the employees as addressing their grievances at a later stage will prove to be problematic in terms of the modern award. The presence of a dispute resolution would play an important role in terms of ensuring that the employees are guaranteed of the resolving their disputes in future regarding the modern Award. Since the union has not been involved and the corporation is not wiling to negotiate with the it, the employees may end up being imposed modern award that has been proposed. This will have a lot of negative impact on the employees in the four year period and it may end up affecting their performance. Although the union has promised to take action, it is important for the employees who are not satisfied with the modern awarded like Elizabeth to take action and also work closely with their union. This can be achieved through seeking the services of a lawyer to file a case against the corporation for contravening the acts that has been provided for in the Fair Work Act in terms of the modern award. It is also important to note that the working environment and the standards of work are important determinants when it comes to the performance of the employees. The corporation has also cut on the wages of the employees by imposing a 30 minutes unpaid meal break. This is demoralizing to the employees considering that the meal breaks are mandatory. The contents of the agreement are thus oppressive on the part of the employees and Elizabeth together with the other employees should not accept it. Elizabeth and the other employees should not accept the terms of the modern award and should ensure that the union is involved during the process. However if the corporation continues to resist the involvement of the union, it will be important for the matter to be determined in Fair Work Commission. The Fair work Australia is an independent body that may be useful in terms of intervening to the situation before taking the matter to court. Elizabeth should present her case to the commission where the company will be summoned and they will also be required to argue their case. However, since the corporation has contravened some of the provisions of the Fair Work Act, it will be forced to reconsider the terms of the modern award before ant action is taken against them. Through this process, the terms may be changed and hence favoring Elizabeth. However, if she will not be satisfied by the decision of the commission then she should go a head with seeking the services of a lawyer together with the union and proceed to court. References Fair Work Act 2009. Marshall, S. (2010). The evolution of labor law in Australia: Measuring the change. Australian Journal of Labor Law, 23(2), 61-93. Howe, J. (2009). Partners in enforcement? The new balance between government and trade union enforcement of employment standards in Australia. Australian Journal of Labor Law, 23(3). Stewart, A. J. (2010). Extending the Fair Work Act: Modern Awards and the New National System. Employment Law Bulletin, 15(10), 160-165. Read More