Despite the fact that Mike broke the terms of the contract, it would be prudent for him to file a lawsuit against the Poppin Firewords Company. Mike was under no obligation to write Alison about the new responsibilities the business had given her. He was required to query the company, though, as to why such a choice was made. Additionally, when apologizing to Alison, Mike disregarded the guidance provided to him. In spite of this, the steps taken to end his working time were against Australian law. This paper would, therefore, analyse the Industrial and Labour Laws of Australia to determine why Mike should sue the company for irregularly terminating his job.
Employment contract is agreement between employee and employer, which sets outs the rules that govern the terms of the employment. There are minimum legal requirements that the contracts must have (Frazer 2014, p.17). Such demands include those that relate to pay – the employee entitlements, the awards and agreement, leaves, and the terms and conditions that govern the ending of the terms of job engagement. An employee of any organisation ought to be given a notice period, through which period of employment comes to end. The notice period begins from the time the employer informs the employee that their work has ended to the moment where the agreement is terminated. The notice periods differ depending on time in which an employer hires an employee. For employee, whose contractual period is less than one year, the notice is one week. Those with a contractual period of between one and three years are given a two weeks’ notice before termination. Contracts, whose periods are of between four and five years, the notice should not be less than 21 days. In Mike’s case, he had worked for the organisation for a period exceeding five years. According to the law, therefore, his terms of job engagement could not have been brought to an abrupt end. Individuals, who have worked for an organisation for more than five years, should not be given a notice for a period less than one month (Forsyth 2017, p.324).
Additionally, the company ought to have considered his age when dismissing him from work. According to the Australian Labour laws, individuals, who are above 45 years of age and have worked for organisation for more than two years, are given entitlement of seven extra days before their engagements come to an end. Many scenarios exist under which a person can be dismissed from work. Such situation may include when the period of engagement comes to a close, seasonal or casual labourers being fired as a result of gross misconduct to an organisation, the company does the weekly hiring, or there is a training period worker should undergo.
Employees may also be given longer notice, if their periods are redrafted or contracts renewed as result of some large reasons. The fair work commission outlines conditions that regard the termination of the term of work. Employees are also allowed to resign from their job, if they feel work environments do not satisfy them. They are also expected to give notices to their bosses.
The employer is also to follow certain steps when terminating a contract that are contained in the Commonwealth laws. Citizens, cooperation, or cooperative, who act as employers, must follow it in bringing a contract to a premature end. They ought to write a notice to the employee concerning the ending of the job. The letter of contact can be deposited to the last known address of the employee. It can also be given to the worker personally. The company did not mind the necessary steps that govern the termination of the employee’s contract. The staffs can be allowed to continue working without interference until the time, at which employer gives them the notice of their contract. The company is expected to pay the employees for the work they have done. In case the employer chooses to pay staff member during the notice period, it is their responsibility to make sure they pay full amount for the whole notice period. Total sum the employee should consider are the loadings, overtime, monetary allowances, incentive-based bonuses and payments, penalty rates, and any other identifiable factors that influence the amount of money that should be paid.
One of the main factors that may lead to dismissal from work includes professional misconduct. From the information, the company accuses Mike of such misconduct. However, the letter of dismissal does not provide the exact details of why and how the body made that decision. In case of outlined misconduct, it is allowed to terminate the contract without the notices. However, the company is expected to pay for all the entitlements of the employee, according to the agreement done at the commencement of the period.
The deal’s details include the time worked and the annual leave. Serious misconduct involves employees’ acting in such a way that is not consistent with employment agreement to continuing to work for the organisation. Among factors that can be considered as misconduct, one may include fraud, theft, causing risk dangers to other workers of the company, or failing to carry out legal or lawful instructions given at work. The dismissal given to Mike is unfair.
Any individual, who is forced to quit work or make an absolute decision not according to their will is supposed to report the situation to the Fair Work Commission. Mike was asked to resign on condition that if he did not do so, his contract would be terminated. It is clear that transferring his duties to Alison was a plan to eliminate him from the organisation. He is, therefore, forthright when making the claim on being mistreated.
In case of Fishlock vs. The Campaign Palace Pty Limited (2013), the judge found that the company had fired Fishlock irregularly after hiring Collins to perform his duties, although their job titles differed. It would have counted as unlawful termination. The ground for irregular dismissal is when it is not justified. The circumstances, under which he was dismissed, were unfair. The case did not also involve genuine redundancy. Mike did not repeat all the mistakes he did. The organisation did not even give him a warning that he should not repeat the mistakes he had done previously. The dismissal letter should be consistent with the requirements of the Industrial Labour Law.
All Mike needs is to make sure he has all the necessary evidence as he gives out his case to the commission responsible for employment matters. The individual, who has been fired, is expected to report their dissatisfaction within 21 days after termination. People also need to be in the National Workplace Relation Systems (Sarfati and Bonoli 2004). They are expected to submit the time, in which they were eligible to work for organisation. The individuals are also supposed to be the workers, who have been dismissed, and not their representatives. In some instances, the employer may block the employee from submitting their claims concerning their dismissal to the Fair Workers Commission. They may file a petition that surrounding should not interfere with activities in their jurisdiction.
Mike is not a national system worker, and it gives him every reason to explain why his termination was unlawful (Thornwaite2016,). National system worker refers to the employees covered by the Fair Workers Act, and as such, they are covered by the applicable state industrial relations system. The law only bars national system employees from making such applications. In several instances, employees, who are not covered by the policies that outline the national work schedules covered by the criminal termination laws, are not entitled to notice of termination or payment in lieu of notice. Employees, who are covered by illegal dismissal laws, include those, who are employed by the nonconstitutional corporations, State Government, and the Local Government in both Western Australia and Southern Australia. Illegal dismissal laws do not include individuals, who resign willingly, employees, who are allowed by the law to make general protection legislation, and trainees, who were to be engaged within a given period. Persons, who are employed on contractual basis, are not eligible to apply for the protection of the law, if the time permitted by the agreement elapses.
The unlawful termination of the employee’s contract involves the cessation of the one on the grounds of illegal reasons. They include temporary absences from work as result of injuries or illnesses, belonging to trade unions, and being involved in its activities advocating for the right of workers outside the outlined working hours (Forsyth 2017, p.328). The organisation is not allowed to terminate the employment period of the worker as a result of not participating in labour movement activities that are recommended by the organisation. Participation in such activities is not a mandatory requirement for any worker (Gospel et al. 2014, p.211).
Workers are at liberty to take part in such events in their volition and cannot be victimised if not. Some companies also operate SACCOs and pension schemes, where workers can save and borrow money. When an employee chooses not to keep their earning with such SACCOS, they cannot be dismissed. In the event employee borrows money from the SACCOs and fails to pay, other disciplinary action may be initiated, but they do not include termination of the job (Mitchell and Fetter 2003, p.28)
Employee’s working contract can also not be terminated if they choose to stand in for other workers. There are cases where by an employer can make a demand, which an employee would treat it as wrong, therefore choosing not to oblige with the request. A worker should not be fired for not following the wrong orders. The employers are expected not to discriminate against their subordinates in any way (Forsyth and Sutherland 2006, p.189). The provisions of section 772 also outline that individual’s employment contracts are terminated, if people do not attend jobs, because they are on maternity or paternity leaves. Mike has some paths to follow in order make sure that justice prevails. He can make the non-national system application regarding his dismissal. It is important to note that it is wrong for him to make both non-national system application and the unlawful removal processes.
Employees are expected to apply for the termination laws 21 days after their firing. In some cases, the commission may choose to listen to cases taken to court after the expiry of the 21 day period (Charlesworth and Macdonald 2014, p.366). In the exceptional circumstances, the Fair Work Commission checks for the reasons for the delay and evidence of prejudice by the employer; attempts made by the employee are also taken into consideration (Stewart 2013, p.341). The success of the application as well as its fairness might also determine the probability if the time of acceptance would be extended.
There are some steps to be followed after applying to the agency. The application is subjected to checks to ascertain whether they are valid or not (Stewart 2013, p.352). Once the claim is validated the Commission, executes its mandate in a number of ways. They include referring an application to a conciliator to help resolve the impasse formally, directing on the dealing of the application taking evidence, conducting conferences, and making of orders. They also need to give the employer a copy of the application to furnish them with information that they had been sued. The Fair Workers Commission holds a conference bringing together the two parties to determine the one that has breached the agreement (Stewart 2011, p.567). According to the Fair Work Commission Act 2009 (Australian Government 2017), the hearing that the commission conducts is supposed to fair transparent quick informal to make a harmonious decision to avoid an acrimonious fall out between the parties.
There are circumstances, under which the Commission may reject the application. They include cases when it does not meet the legal requirement, is frivolous, and has no reasonable prospect of success (Stewart 2011, p.569). The commission can also dismiss employer’s application if the company failed to attend the hearings without a valid reason, comply with the order given by the board, or discontinue the application after the matter has been settled and a decision made (Creighton and Stewart 2005, p.106). In the event, amicably solving the conflict, the employment status of the worker would be restored (Deakin 2013, p.7). Referring a matter to the commission has numerous benefits, as it enables the compensations to be given on time and allows for their remuneration’s. Mike had the upper hand in the case – he had all the necessary reasons and evidence regarding his communication with the chairman.
References
Australian Government. (2017). Fair Work Act 2009. [Online] Available at: https://www.legislation.gov.au/Details/C2017C00144 [Accessed 12 Sep. 2017]
Charlesworth, S. and Macdonald, F., 2015. Women, work, and industrial relations in Australia in 2014. Journal of Industrial Relations, 57(3), pp.366-382.
Creighton, W.B. and Stewart, A., 2005. Labour law. Sydney: Federation Press
Deakin, S., 2013. Addressing labour market segmentation: The role of labour law. Centre for Business Research, University of Cambridge.
Fishlock v The Campaign Palace Pty Limited (2013) NSWC 531.
Forsyth, A. and Sutherland, C., 2006. Collective labour relations under siege: The work choices legislation and collective bargaining. Australian Journal of Labour Law, 19(2), pp. 183-197
Forsyth, A., 2017. Industrial legislation in Australia in 2016. Journal of Industrial Relations, 59(3), pp.323-339.
Frazer, A., 2014. Labour law, institutionalist regulation, and the employing organisation. International Employment Relations Review, 20(1), pp.4-26.
Gospel, H., Pendleton, A., and Vitols, S. (Eds.), 2014.Financialisation, new investment funds, and labour: An international comparison. Oxford University Press.
Mitchell, R. and Fetter, J., 2003. Human resource management and individualisation in Australian labour law. The Journal of Industrial Relations, 45(3), pp.1-35.
Sarfati, H. and Bonoli, G., 2004. Labour market and social protection reforms in international perspective: Parallel or converging tracks? Industrial & labour Relations Review 57(3).
Stewart, A., 2011. Fair work Australia: The commission reborn? Journal of Industrial Relations, 53(5), pp.563-577.
Stewart, A., 2013. Stewart’s guide to employment law (Vol. 3). Sydney: Federation Press.
Thornwaite, L., 2016. Chilling times: social media policies, labour law, and employment relations Asia Pacific Journal of Human Resources, 54(3).
