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Unfair dismissals benchbook

An overview of legal procedure & case law

Other relevant matters

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Table of contents

On this page

  • Any other matters
  • Differential treatment compared to that given to other employees
  • The impact of the dismissal on the employee's personal or economic situation
  • Long, satisfactory work performance or history
  • Summary dismissal
  • Procedural fairness
  • Case examples
  • References

 

See Fair Work Act 2009 s.387(h)

Any other matters

Any other matters must be relevant in the context of the circumstances of the particular case.[1]

Not every submission that is made has to be dealt with, but those which are centrally relevant to the consideration of whether a dismissal was unfair should be given adequate consideration.[2]

Differential treatment compared to that given to other employees

Differential treatment compared to treatment of other employees may be taken into account.[3]

The Fair Work Commission will approach claims of differential treatment in other cases with caution as a basis for supporting a finding that a termination was harsh, unjust or unreasonable.[4]

The Commission must be satisfied that any examples of differential treatment where no termination occurred are properly comparable, comparing 'apples with apples'.[5]

There must be sufficient evidence to support the examples provided to ensure a proper comparison can be made.[6]

The impact of the dismissal on the employee's personal or economic situation

The impact of the dismissal on the employee's personal or economic situation may be taken into account.[7]

The ability to find alternative work, particularly in a small town where the former employer is the only employer (or employs the majority of the population) may result in prolonged period of unemployment or under-employment for the employee.[8]

Long, satisfactory work performance or history

The employee's work performance or history is a factor that can be taken into account.[9]

A long unblemished record will weigh in the employee's favour and may be relied on as a factor for the Commission to consider in determining if the termination of employment was harsh, unjust or unreasonable.[10]

Summary dismissal

A situation where an employee is summarily dismissed can also be a relevant factor that may be taken into account.[11]

Summary dismissal is the most severe form of termination of employment. By its nature, summary dismissal indicates and records some very serious wrongdoing. Summary dismissal is implemented without any notice or payment in lieu of a period of notice. A summary dismissal may also remove entitlements to certain service related payments such as accrued long service leave. Summary dismissal should be clearly distinguished from a dismissal with notice or payment for the notice period.[12]

In cases involving summary dismissal, the proportionality of the dismissal may be considered under s.387(h).[13] In other words, was the penalty imposed a disproportionate response to the conduct complained of?[14]

Procedural fairness

Procedural fairness is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself.

Procedural fairness is one of the factors that the Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable. Procedural fairness can take many forms, such as:

  • whether an employer has followed their own procedures in dismissing an employee[15]
  • whether the employee had an opportunity to explain their side of whatever happened,[16] or
  • being able to seek advice or have a support person available at a meeting.

The terms ‘procedural fairness’ and ‘natural justice’ have similar meaning and can be used interchangeably.[17]

Procedural fairness is one aspect of the rules of natural justice.[18]

Procedural fairness requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it.[19]

The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.[20]

What is fair will depend on the particular statutory framework within which the decision is taken.[21]

Ordinarily, procedural fairness would require that an allegation be put to a person and they be given an opportunity to answer it before a decision was made.[22]

Case examples

Dismissal was unfair

Procedurally unfair

Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd [2016] FWC 5141 (Cambridge C, 5 August 2016).

The employee was employed as a Store Manager. He was summarily dismissed for serious misconduct involving the employer’s findings in respect to four allegations including the failure to properly record and receipt the cash provided for a sale of shoes to a friend, a breach of lay by policy and the falsification of timekeeping records.

The Commission held that only one of the employer’s findings of serious misconduct could be sustained. The employer’s finding in respect to the allegation regarding the applicant failing to properly record and receipt the cash provided in respect to the purchase of shoes, established a valid reason for the dismissal of the applicant. The Commission found that in the context of the retail industry, the misconduct of the applicant in respect to the mishandling of cash in respect to the sale of the shoes to a friend represented serious misconduct that would justify dismissal with notice. However, the employer had consciously permitted the applicant to come to work following the investigation in the full knowledge of the nature and extent of the misconduct for which it later summarily dismissed him. Allowing the applicant to continue work was considered inconsistent with decision to then summarily dismiss him on the basis of that misconduct.

The Commission found that ‘the manifestly erroneous approach adopted by the employer when dealing with what has subsequently been established to be both serious misconduct and significantly less serious misdemeanours, has meant that there was not proper basis to justify the summary dismissal of the applicant. The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal.’

The Commission determined that the summary dismissal of the applicant was unreasonable and unjust, and ordered compensation of $1,100.

Differential treatment

Fagan v Department of Human Services [2012] FWA 3043 (Cribb C, 19 April 2012).

The employee was a corrections officer. He was dismissed for taking toilet paper to an inmate during lockdown in breach of the employer's policy. The employee claimed that another employee was not dismissed for the same conduct in comparable circumstances. The employer argued that the applicant employee's conduct differed from the other employee.

It was found that the conduct of the 2 employees was comparable and that there was differential treatment. It was also found that the termination was harsh in the circumstances and an order for compensation was made.

Dismissal was NOT unfair

Not procedurally unfair

Rooney v Pickles Auctions Pty Ltd [2016] FWC 858 (Cambridge C, 9 February 2016).

The employee had worked for the employer for about 6 years and 8 months and was employed in the role of a Detailer/Floor Staff. The employee was dismissed on the afternoon of 17 June 2015 because earlier that day he had failed to attend for work at or before his scheduled start time and without prior notification of his lateness. The employee had a history of poor attendance, primarily involving his failure to attend at or before the scheduled start time and he had been provided with numerous verbal and written warnings regarding his poor attendance.

The Commission found that the employer provided the employee with an opportunity to explain or make out a defence for his late attendance and failure to provide prior notification on 17 June. When the employee could not provide any satisfactory explanation the employer carefully considered the circumstances, and reluctantly decided that in view of the employee’s demonstrated inability to be able to improve his attendance, his employment should be terminated.

The Commission found that the notification of the dismissal of the employee, and other aspects of the procedure that the employer adopted to deal with the dismissal, contained no identifiable deficiency. It found was a valid basis for the dismissal and the procedural aspects of the employer’s approach to the dismissal of the applicant was proper and just, and should be properly recognised as ‘commendable’. The Commission concluded that the employee’s dismissal was not harsh, unjust or unreasonable and dismissed the application.

Not procedurally unfair

Hill v Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services [2019] FWC 7875 (Anderson DP, 22 November 2019).

The applicant was dismissed for misconduct which the respondent considered a breach of its Code of Business Conduct. Since 2017 the applicant had experienced major health challenges, including depression. His employment security was not adversely impacted by these challenges.

However from 2017, performance and conduct issues emerged sporadically. These issues concerned the applicant's conduct in and around other staff. Performance reviews referred to these matters and from time to time, he was informally spoken to by his manager about his conduct. A new software system was introduced in 2018 and the applicant as well as other managers and staff experienced difficulties with the system and adapting to it. An email disagreement occurred between the applicant and a colleague about an invoice and what information it should contain. The applicant lent over a partition and in a raised voice abused his colleague.

Management intervened and investigated the incident. It commenced a disciplinary process and provided the allegations in a letter to the applicant. The applicant then took five weeks of personal leave (supported by medical certificates), and upon his return a disciplinary meeting occurred. During the meeting the applicant became loud and aggressive. The meeting was rescheduled to prevent further escalation. The respondent arranged for a representative from the company's employee assistance program (EAP) and security to be available for the rescheduled meeting. After discussions at the rescheduled meeting the applicant was dismissed for breaching the Code of Conduct, for his conduct during the disciplinary meetings and a lack of remorse.

The Commission found the applicant's outbursts and unsatisfactory dealing with staff were of relatively recent duration (given his 13 years of service), were sporadic and were not a constant occurrence. However unacceptable workplace conduct, even when occasional, if repeated and not remediated can warrant disciplinary sanction including dismissal, depending on the circumstances. The Commission found a valid reason for dismissal, in particular the applicant's misconduct in the workplace when he abused, threatened and intimidated a colleague. With respect to the applicant's depression, the respondent had advised of the company's willingness to enable him to take time to get better and informed him of the counselling services available through the EAP. The Commission found this was an appropriate and respectful response. The applicant presented no evidence that his conduct arose from or was caused by his depression.

The Commission held that the applicant was not denied procedural fairness. Aside from the warnings and counselling, the allegations of misconduct were put to him; he was provided an opportunity to explain; and disciplinary meetings were deferred to meet his circumstances. The applicant was invited to obtain assistance from a support person but declined. The Commission found that the applicant was not denied ‘a fair go’ and that the dismissal was not unfair. The application was dismissed.

No differential treatment

Darvell v Australia Post [2009] FWA 1406 (Hamilton DP, 2 March 2010).

Permission to appeal refused in (2010) 195 IR 307.

The employee was a truck driver and an occupational health and safety representative. He was summarily dismissed when he refused to follow his employer's direction on safety grounds. The employee argued that the employer had treated him differently to other employees.

It was held that there must be sufficient evidence of comparable cases to enable proper comparison. The application was dismissed.

No differential treatment – union delegate

Parry v Hans Continental Small Goods Pty Ltd [2010] FWA 9013 (Spencer C, 8 December 2010).

The employee had been employed for 9 years and was dismissed for swearing at his manager. The employee was a union delegate. The employee claimed differential treatment.

It was found that the common usage of swear words in the workplace was distinguished from the employee's swearing, which was directed at his manager in an insulting manner. The dismissal was not unfair and the application was dismissed.

No differential treatment – age of employee and ability to find alternative work considered

Daly v Bendigo Health Care Group, PR973305 (AIRC, Kaufman SDP, 13 July 2006).

The employee was employed as nurse in a psychiatric facility. The husband of a patient made a complaint about the treatment of his wife at the facility. Following an investigation, the employee was terminated for serious misconduct. The employee alleged differential treatment because other nurses on the shift who were also responsible for the care of the patient were not dismissed.

There was insufficient evidence to enable a proper comparison with other employees. It was found that the summary dismissal of the employee was justified and dismissed her application.

No evidence of differential treatment – age and length of service of employee taken into account

Sexton v Pacific National (ACT) Pty Ltd, PR931440 (AIRC, Lawler VP, 14 May 2003).

The employee and his co-driver were shunting 30 rail carriages and negligently caused the rail carriages to go down the wrong track and collide with another set of carriages. The employee had previously been warned in relation to a derailment incident. The employee claimed differential treatment between himself and his co-driver.

The separate derailment incident was distinguished from that of the employee as the employee involved in the other incident had no previous warnings. The employee's age and length of service were taken into account, as well as his apology and positive work history. It was found that the termination was not harsh, unjust or unreasonable and the application was dismissed.

Age of employee, length of service, personal and economic situation

Sipple v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 5728 (Hamberger SDP, Gostencnik DP, Riordan C, 16 October 2015).

Decision at first instance [2015] FWC 1080 (Stanton C, 18 February 2015).

The employee was employed as a pit services operator at a mine. He was dismissed on the basis that he was no longer able to perform the inherent requirements of his position as a multi-skilled worker due to personal injury. At first instance it was found that there was a valid reason for the dismissal on the basis that the employee was unfit to perform his role and that the termination was not harsh, unjust or unreasonable.

A Full Bench granted permission to appeal on the basis that the Commission had failed to properly consider a number of matters, including the age of the appellant, his length of service, his literacy, family commitments and the availability of other duties, which were relevant to the consideration of whether his dismissal was harsh, unjust or unreasonable.

The Full Bench majority agreed that there was a valid reason for the employee's dismissal. Much of the employee's case rested on the fact that he could continue to work as a service cart operator. However, the majority held that the employer did not have a need for a service cart operator and the employee's medical restrictions significantly limited his capacity to operate other pieces of equipment and perform the inherent requirements of the role of pit service operator. The majority found that the additional matters did not weigh so heavily in favour of the employee as to render the dismissal in the circumstances, harsh, unjust or unreasonable. The appeal was dismissed.

References

[1] Kehagias v Unilever Australia Limited, Print Q0498 (AIRCFB, Watson SDP, Williams SDP, Larkin C, 29 April 1998).

[2] Sipple v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Warkworth Operations [2015] FWCFB 2586 (Catanzariti VP, Harrison SDP, Bull C, 24 April 2015) at para. 18; citing Soliman v University of Technology, Sydney [2012] FCAFC 146 (24 October 2012) at paras 55–57, [(2012) 207 FCR 277]; Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 (13 December 2013) at para. 47; Fox v Australian Industrial Relations Commission [2007] FCAFC 150 (27 September 2007) at paras 37, 40.

[3] Sexton v Pacific National (ACT) Pty Ltd, PR931440 (AIRC, Lawler VP, 14 May 2003) at para. 33. See also Davis v Collinsville Coal Operations, PR953370 (AIRCFB, Harrison SDP, McCarthy DP, Redmond C, 19 November 2004) at para. 31; National Jet Systems Pty Ltd v Mollinger, Print R3130 (AIRCFB, Giudice J, Polites SDP, Gregor C, 18 March 1999) at para. 25; SERCO Gas Services Pty Ltd v Alkemade and others, Print R6090 (AIRCFB, Ross VP, Polites SDP, Hingley C, 21 June 1999) at para. 6; Department of Employment and Workplace Relations v Oakley (2004) 137 IR 321 [45].

[4] Sexton v Pacific National (ACT) Pty Ltd, PR931440 (AIRC, Lawler VP, 14 May 2003) at para. 36.

[5] ibid.

[6] ibid.

[7] Ricegrowers Co-operative Limited v Schliebs, PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) at para. 26; citing Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995), [(1995) 185 CLR 410]; Gasz v Mobil Refinery Australia Pty Ltd, PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17; Ashley v Statewide Autistic Services Inc, PR959835 (AIRCFB, Ross VP, O'Callaghan SDP, Cribb C, 7 July 2005) at para. 110.

[8] Ricegrowers Co-operative Limited v Schliebs, PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) at para. 27.

[9] Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at para. 25, [(2008) 170 IR 1]; Cunningham v Australian Bureau of Statistics (2005) 148 IR 20; Gasz v Mobil Refinery Australia Pty Ltd, PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17.

[10] Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at para. 27, [(2008) 170 IR 1].

[11] Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at para. 27, [(2008) 170 IR 1]; Department of Employment and Workplace Relations v Oakley (2004) 137 IR 321 [45]; Sabeto v Waterloo Car Centre Pty Ltd (2003) 123 IR 222 [26].

[12] Puszka v Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited [2019] FWC 1132 (Cambridge C, 7 March 2019) at para. 41.

[13] Potter v WorkCover Corporation, PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458].

[14] ibid.

[15] See for example Odgers v Central Queensland Services Pty Ltd [2019] FWC 7150 (Hunt C, 15 October 2019) at paras 220–240.

[16] See for example Naoum v ISS Security Pty Ltd ABN: 14 001 375 186 [2019] FWC 6421 (Cambridge C, 27 September 2019) at paras 49–52.

[17] Butterworths Australian Legal Dictionary, 1997, at p. 928.

[18] McIntosh v Australian Federal Police [2014] FWCFB 6662 (Acton SDP, Smith DP, Lewin C, 8 October 2014) at para 64; citing Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002) at para. 40 (per Gaudron and Gummow JJ).

[19] Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (14 March 2002) at para. 40 (per Gaudron and Gummow JJ).

[20] Kioa v West [1985] HCA 81 (18 December 1985) at para. 11 (per Gibbs CJ), [(1985) 159 CLR 550].

[21] Kioa v West [1985] HCA 81 (18 December 1985) at para. 21 (per Wilson J), [(1985) 159 CLR 550]; citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 (15 October 1963) at para. 13 (Kitto J), [(1963) 113 CLR 475].

[22] Kioa v West [1985] HCA 81 (18 December 1985) at para. 22 (per Wilson J), [(1985) 159 CLR 550].

Updated time

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16 March 2021

 

 

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        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
    • Attachment 5 – provisions that continue to apply
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required – operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • US, UK and Australian minimum wage systems
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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