THE EMPLOYMENT LAW

Introduction

Ken has a strong case based on the foundations of common law and Unfair Act of 2009. His dismissal has critical issues explained under unfair dismissal and termination on an employee’s contract. Primarily, Ken’s case will be mastered by unfair termination and dismissal, misrepresentation and employer’s adverse action. The collective legal provisions give him a reasonable case and which could increase his chances for reinstatement or financial compensation. 

Notice of termination

According to the common law, unfair dismissal is primarily ascertained as the employer’s misconduct (Rubenstein & Frost, 1984). It is ruled out as an error in logic and reason in aligning integrity to terminating an employee’s contract or employment. The common law stipulates that an employee ought to be provided with a notice of their dismissal. Such a notice ought to be written and presented to the employee. As well, the notice ought to allocate the employee reasonable time before retrenchment. Unfair dismissal is characterized by the absence of notice of termination. Under common law, Ken was dismissed since he was not provided with a written notice of dismissal but retrenched without warning. Ken as such has a case on the basis of his job termination.  

Ken’s case is also strengthened by his job entitlement. He has been a permanent employee and not a contractor to Monash. As well, he had been under the company as a driver as a driver for ten years and hence qualifies minimal work duration as demanded by the FWC. Collectively, the employer enacted subjective dismissal which is questionable on a legal platform for the nature of the decision implemented.

Good Faith

Ken apologized for his misconduct and even confessed of his offenses to the supervisors. He showed good faith and integrity reflecting as well his compliance to the organization’s policy. He advanced his efforts to seek professional services to assist him to resolve his personal life issue affecting his job. Typically, his actions represent good faith and work integrity. However, his employer depicts unfair and subjective interest to his case. The organization threatens him with his job in the incidence he would decline to take the counseling provision. The counseling intervention in question as such was an attribute of threats and warning. Ken’s initial compliance was in fear of losing his job; which he consequently lost. The employer acted not in good faith in administering the counseling intervention. According to Fair Work Act, the company should not compromise the employee’s good faith or act in a way to manipulate their working conditions (Rutherglen, 2004). 

Conflict of the supervisor’s interest in acting not in good faith played a significant role which contributed to Ken losing his job. The supervisor assumed his commitment and by so doing interfered with the employee’s personal life (Duggan, 2003). It was Ken’s duty and responsibility to seek counseling and not the organization. Based on Ken’s assertion, he was not aware of the employer’s authority to administer counseling efforts to him. As such, the supervisor blackmailed the intervention for the job. Blackmail by itself is a legal crime and especially when associated activities lead to job termination. The supervisor and the employer as well are responsible for unfair dismissal since they violated the employment rights by acting not in good faith. Their actions (retrenchment) are not justifying his (Ken’s) misconduct and aligned trend of responsibility and policy conformance. 

According to Fair Work Act 2009, employee dismissal ought to be accompanied by an individual’s representation or by a body of professionals. However, Ken’s dismissal lacks representation either by him or his risk management professionals. Following the forced counseling undertaking, Ken employed professionals to assist him with the case t hand. However, the employer overlooked the provision and acted on his and their behalf. Typically, the employer has the right to represent the employee but only with the omission of other representatives. As such, Ken’s company enacted misrepresentation by serving him and his related needs. The actions represent acts of unprofessionalism. The employer’s misrepresentation and which resulted in his dismissal played an integral part in his retrenchment as argued by Hendrickx & Castro (2002). 

Employee’s misrepresentation ensured the employee received null bargaining in good faith. Contrary to the occurrence, the management ought to have provided Ken with just representation to undertake the bargaining activity. Denial to fair bargaining and immediate dismissal amount to misrepresentation (Taylor, 2009). Collectively, the organization acted not in good faith and enhanced unfair dismissal in their decision. Moreover, the employee’s consent need to be included in the dismissal unless in the case of proper summary termination. 

Adverse Action

Adverse action is represented by employer’s use of excessive and unnecessary measures in termination of an employee’s employment (Smith, Thomas & Smith, 2008)). Dismissal is termed as of adverse action if the misconduct is not ascertained equivalent to the intervention provided. Ken’s employers exercised adverse action by retrenching him from not attending counseling sessions. Practically, the reason for his retrenchment was not provided to him as provided by Fair Work Act 2009. Irrespective of the supervisor’s counseling intervention, Ken had adopted personal strategies to redeem himself from the drinking behavior. The police did not retain his driving license to imply the level of alcohol consumption was not critical to cause self or third party harm. However, the organization acted extremely adverse to take his job in the same offense. The counseling intervention together with his personal efforts and commitment could have lessened the magnitude of the offense and its future occurrence.

Moreover, Ken did not receive a warning on his behavior. He reported the offense once, and its subsequent management undertakings led to his dismissal. According to Fair Work Act 2009, an employee ought to be reasonably warned of the consequences of a continued misconduct and particularly if the potential risk is extremely high. A single reported event leading to dismissal is also associated with unfair employment termination. Collectively, the entire retrenchment process lacked reasonable progress with the management’s decision remaining abrupt and adverse against Ken. 

Summary Dismissal

Fair Work Act 2009 provides the employer with the power to dismiss an employee immediately without seeking their consent or bargaining (Taylor, 2009). Under the provision, the dismissal may not be communicated. However, the rule holds that the employee must be aware of the consequences of misconduct or offenses committed. It is likely the management would argue ‘summary dismissal’ against Ken particularly on his unattended counseling sessions. However, Ken was not aware of the summary dismissal policy in the organization. Again, the employer would need to prove without reasonable doubt that Ken’s offense amounted to the decision. As such, Ken would remain with a case to argue against the organization especially on “fair work information statement.” Could such information be valid, then Ken could argue that the information was withheld and unfairly used against him. Practically, Ken has a case to claim under common and Fair Work Act 2009 laws. 

What if -Defense

Ken’s case would be weakened by the provision that authorized supervisors are mandated to refer employees for counseling and that such information was provided on the organization’s website. The case is built on various pillars with misrepresentation and Fair Work Information Statement being significant to the case. Such information in the company website provides that prima facie that every employee is aware and acknowledges that the supervisors are mandated to recommend counseling for their junior employees. As such, the employer could argue that Ken acted unreasonably ad against the organization’s policy with full knowledge and awareness of the supervisor’s instructions. Again, Ken would not be able to argue against the organization that the information was withheld from him. The provision as such would nullify his argument for information disclosure. Every employee has access to the company website and hence assumed to be aware of the work conditions contained in it. However, Ken could argue that the information was missing in his employment contract and hence the organization used its website to hide such information from the employees. He would have a case questioning why the information was only provided on the internet site without full disclosure to the employees (Macken, McCarry, Sappideen, & Macken, 1984).

The provision of such mandate could as well limit the validity of adverse action ascertained by Ken. Awareness and full knowledge of the supervisor’s action and his negligence would significantly affect the case. It would be established that Ken acted rudely and negligently; overlooking the organization’s policy and authority of the supervisor. His actions would collectively amount to a professional offense. As such, the organization would be able to argue that his unprofessional and irresponsible behavior at work influenced the enacted decision i.e. summary termination. As such, the new information can impact the entire case including the most primary case pillar; job dismissal without notice. 

In conclusion, Ken remains to have a case which he can sue for either reinstatement or financial compensation due to unfair dismissal (Abbott, 2011). Under common law, he was retrenched against the legal provisions and as such the employer violated his rights as an employee. Even with the new information assumed to be aware of the supervisor’s authority, he would as well retain his case from adverse action and misrepresentation. 

References

Abbott, K. (2011). The Fair Work Act: Revision or restitution. Heidelberg, Vic.: Heidelberg Press.

Anglim, C. (1997). Labor, employment, and the law: A dictionary. Santa Barbara, CA: ABC-CLIO.

Duggan, M. (2003). Wrongful dismissal & breach of contract. Welwyn Garden City, Hertfordshire: EMIS Professional Pub.

Hendrickx, F., & Castro, C. (2002). Employment privacy law in the European Union. Antwerpen: Intersentia.

Macken, J. J., McCarry, G. J., Sappideen, C., & Macken, J. J. (1984). The law of employment. North Ryde, N.S.W.: Law Book.

Painter, R. W., & Holmes, A. E. (2004). Cases and materials on employment law. Oxford: Oxford University Press.

Rubenstein, M., & Frost, Y. (1984). Unfair dismissal: A guide to relevant case law. (): Industrial Relations Services.

Rutherglen, G. (2004). Major issues in the federal law of employment discrimination. Washington, D.C.: Federal Judicial Center.

Smith, I. T., Thomas, G., & Smith, I. T. (2008). Smith & Wood’s employment law. Oxford: Oxford University Press.

Taylor, I. (2009). The Fair Work Act: Good faith bargaining and the role of Fair Work Australia. Adelaide: Law Society of South Australia.