Protections in Relation to Dismissal: From the Workplace Relations Act to the Fair Work Act

Abstract

Over the past 15 years the statutory framework regulating fairness in dismissal has undergone much change, as parliaments have attempted to address what they see as the inadequacies of the system. This paper provides a comparison of three time periods at the federal level: the Workplace Relations Act 1996 (Cth) (‘WR Act’) before the Work Choices package of late 2005, the WR Act after the Work Choices package took effect, and the Rudd Government’s new Fair Work Act 2009 (Cth) (‘FW Act’), which passed both House of Parliament on 20 March 2009. Most of the termination of employment provisions in the FW Act commenced on 1 July 2009, with the remainder (namely those in the National Employment Standards) expected to commence on 1 January 2010. The objective of this article is to provide an overview of the continuities and discontinuities over these three periods, with a focus on the framework of the new FW Act. The paper examines both unfair dismissal law and unlawful termination law, as they have generally become known. Unfair dismissal law provides an avenue for certain employees to make an application for relief on the ground that their termination was ‘harsh, unjust or unreasonable’. Unlawful termination, by contrast, has come to refer to a package of additional provisions regarding termination of employment, namely, minimum notice periods, a prohibition on dismissal based on a discriminatory ground such as race or sex, and information and consultation requirements on employers relating to redundancies of 15 or more employees.

Keywords: unlawful termination law, unfair dismissal law, Workplace Relations Act, Fair Wok Act

JEL Classification: K10, K31