Unfair Dismissal, Procedural Fairness, Substantive Fairness, Employer Policies

POINTS TO COVER IN THE ARTICLE REVIEW
• Primary Topics: Unfair Dismissal, Procedural Fairness, Substantive Fairness, Employer Policies
• Eligibility to claim unfair dismissal
• Compare the change from the Workplace Relations Amendment (Work Choices) Act 2005
(Cth) to the Fair Work Act 2009 (Cth); what was the important change?
• Also, what data is available – how many employees are now eligible to claim unfair
dismissal (and how many were ineligible under the Workplace Relations Amendment (Work
Choices) Act 2005 (Cth)).
• What was written about the change from the Workplace Relations Amendment (Work
Choices) Act 2005 (Cth) to the Fair Work Act 2009 (Cth)?
Academics

  • Employer Associations
  • Union
  • Both sides of Government.
    • Potentially hypothesise that Poultry Harvesters may have had less than 100 employees
    (compare/contrast Ms Cannon’s position under current and prior legislation).
    • Procedural and substantive fairness? Explain both, then examine what Poultry Harvesting did,
    and what they should have done?
    • Policies- Fair Work Commission intolerance of employers who do not follow their policies. In this
    case the employer sought to rely on a policy which was lacking. Perhaps reference another case
    where an employer sought to rely on a company policy, the company policy was breached, and
    the FWC held for the employer.
    • Unitarist and managerial prerogative – right to hire and fire? Compare with the pluralist ideology
    and the role of the State in this tripartite relationship.
    • How does Australia compare with other countries? Perhaps discuss in the context of the
    regulation continuum? Is Australia’s unfair dismissal laws too liberal (most employees have
    access to unfair dismissal), or are they consistent with other countries? By way of example, are
    there countries with minimal regulation whereby employers can exercise significant managerial
    prerogative in being able to dismiss employee?
    • “Go away money”
    • What is written (because there is plenty – academic literature, and reports by employer
    associations to the Productivity Commission)?
    • Also, why is the level of conciliated cases relevant to the “go away” money discussion?