Employment Law

Unfair dismissal and the common law

Published in: October 2016

Employees in Australia generally have strong protections from actions of unfair dismissal, however, what happens in circumstances where an employer initiates investigative or disciplinary processes against an employee? Are there any laws relating to what is appropriate? Do employees have the right to be informed that they are being investigated or facing possible disciplinary action? There are a number of laws in place to answer the previous questions, and before continuing with our discussion, we should point out that this piece will primarily be looking at the common law position.

Are employers required to act fairly?

It may be surprising for some readers to learn that there is no implied common law obligation for an employer to act fairly in relation to investigative or disciplinary processes. Although, under the Fair Work Act 2009 (Cth) (the Act), certain behaviours by an employer may comprise an adverse action against an employee who is exercising a workplace right – including disciplinary proceedings, investigations, warnings, and suspension from their duties. Therefore, a duty will be owed to an employee in statutory unfair dismissal jurisdictions where applicable, if statute makes available processes relating to discipline and dismissal, in expressed contractual provisions, and binding industrial instruments.

Therefore, if there are no protections in place either through contract or industrial instrument, there is no implied duty for an employer to act fairly if they commence any investigative or disciplinary processes. Furthermore, there is no common law duty allowing an employee to respond to any allegations or reasoning behind an action of dismissal or discipline as well.

Are employers required to provide reasons?

Looking at the common law, employers are also not obliged to inform an employee the reasons behind a dismissal or to be given a hearing. However, the common law position relating to discipline proceedings has been reduced by industrial instruments and awards which grant employees the ability to respond to any disciplinary proceedings made against them by an employer. 

Therefore, if there are no protections in place either through contract or industrial instrument, there is no implied duty for an employer to act fairly if they commence any investigative or disciplinary processes. Furthermore, there is no common law duty allowing an employee to respond to any allegations or reasoning behind an action of dismissal or discipline as well.

We should reemphasise the point that this piece was only concerned with the common law, rather than legislative instruments.  

Contact Eddy Neumann Lawyers on (02) 9264 9933 or
by email info@eddyneumann.com.au for clear and expert advice.
You will be directed to one of our experienced lawyers who can assist your needs.

 

Level 1, 255 Castlereagh Street Sydney NSW 2000 | PH 02 9264 9933 | FAX 02 9264 9966 | info@eddyneumann.com.au

© 2007 - 2016 Eddy Neumann Lawyers  |  Site by EWide  |  Disclaimer