The Fair Work Commission can only deal with unfair dismissal applications that fall within its powers, also known as its 'jurisdiction'. When an employer believes that the Commission lacks jurisdiction to handle an unfair dismissal application or the applicant isn't...
Workplace Relations
Executive termination without reason – not so quick!
In Australia, many executive contracts have a clause that allows an employer to terminate the contract without giving a reason (or without cause) simply by the giving of a prescribed period of notice or paying the equivalent amount in lieu of notice.And a lot of...
What does s. 361 of the Fair Work Act do and why is it so important for employers to understand?
Section 361 of the Fair Work Act 2009 is an extraordinary provision because it reverses the traditional onus of proof in civil proceedings. Ordinarily it is the plaintiff or applicant that must prove their case to the requisite standard of proof. However, if an...
Is language important when you are issuing a direction or instruction to an employee?
The answer is “yes”.With a few exceptions, employees are contractually obligated to follow any lawful and reasonable direction issued to them by their employer and a failure to do so can have disciplinary consequences for the employee.However, to be a direction, the...
Can the rule in Jones v Dunkel be applied in the Fair Work Commission?
The answer is “yes”. In Australia, when a party to civil litigation fails to call a witness, or lead evidence that is conveniently available to it and this failure is unexplained, a submission may be made by the opposing party that the rule in “Jones v Dunkel” ought...
One of my ex-employees resigned, but is now claiming they were constructively dismissed in an unfair dismissal application to the Fair Work Commission. What is that?
Section 386(1) of Fair Work Act defines “dismissed” to mean when:a. A person’s employment with his or her employer has been terminated on the employer’s initiative; orb. The person has resigned from his or her employment, but was forced to do so because of the...
What is procedural fairness?
Procedural fairness refers to acting fairly in administrative decision making. The expression is often used interchangeably with “natural justice” and is often misunderstood by lawyers and non-lawyers. Put simply - it relates to the fairness of the procedure by which...