Termination of Employment€¦ · Web viewThe Office of Workplace Services conducted an...

TERMINATION OF EMPLOYMENT

Paper for the 2nd ACTU Industrial Officers Conference

Sydney, 25-26 July 2006

Susie Allison & Antonia ParkesNational Union of Workers

ACTU INDUSTRIAL OFFICERS CONFERENCE 2006: TERMINATION OF EMPLOYMENT

TERMINATION OF EMPLOYMENT

1. OVERVIEW.................................................................................................................................................. 32. UNFAIR DISMISSAL.................................................................................................................................... 4

2.1 WHAT IS UNFAIR DISMISSAL?.....................................................................................................42.2 WHO CAN MAKE AN UNFAIR DISMISSAL APPLICATION?.........................................................4..................................................................................................................................................................... 4

2.2.1 EXEMPTIONS (S.643)................................................................................................................42.2.2 TRADITIONAL EXCLUSIONS (S.638)........................................................................................42.2.3 NEW EXCLUSION...................................................................................................................... 52.2.4 OTHER EXCLUSIONS................................................................................................................5Termination at the initiative of the employer and constructive dismissal..................................................5

2.3 100 OR FEWER EMPLOYEES (S.643(10)-(12)).............................................................................52.3.1 WHO AND WHEN.......................................................................................................................52.3.2 RELATED BODIES CORPORATE.............................................................................................62.3.3 EVIDENCE REGARDING 100 EMPLOYEES AND RELATED BODIES CORPORATE.............62.3.4 SHAM ARRANGEMENTS/ JOINT EMPLOYMENT....................................................................7Example: Baldacchino & others v Triangle Cables PR972581 (24 May 2006).........................................7

2.4 EXTENSION OF QUALIFYING PERIOD (S.643(6)-(7))..................................................................8Example: NUW model clause..................................................................................................................8

2.5 GENUINE OPERATIONAL REASONS (S.643(8)-(9)).....................................................................92.5.1 WHAT IS MEANT BY ‘GENUINE OPERATIONAL REASONS’?................................................92.5.2 IS IT A GENUINE OPERATIONAL REASON FOR TERMINATION?.........................................92.5.3 REDUNDANCY PAY................................................................................................................. 10Example: Cowra abattoir........................................................................................................................ 10Example: Perry v Savills (Vic) Pty Ltd PR973103 (20 June 2006).........................................................10Example: Azwar Koya v Port Phillip City Council. PR973045 (13 June 2006).......................................11

2.6 PROCESSES IN THE COMMISSION...........................................................................................122.6.1 TIME LIMITS FOR DISMISSAL APPLICATIONS.....................................................................122.6.2 DISMISSAL OF APPLICATION FOR WANT OF JURISDICTION OR WHERE APPLICATION IS FRIVOLOUS OR VEXATIOUS..........................................................................................................12‘On the Papers’...................................................................................................................................... 12No right of appeal to Full Bench.............................................................................................................122.6.3 CONCILIATION (s.650).............................................................................................................13‘What a pimple to have created such a fuss’: Paul Munro......................................................................132.6.4 ELECTING TO PROCEED FURTHER (s.651).........................................................................132.6.5 ARBITRATION: UNFAIR DISMISSAL (s.652)...........................................................................132.6.6 REMEDIES: UNFAIR DISMISSAL (s.654)................................................................................142.6.7 COSTS (s.658).............................................................................................................................. 14

3. UNLAWFUL TERMINATION................................................................................................................. 153.1 GROUNDS FOR UNLAWFUL TERMINATION.............................................................................15

3.1.1 Prohibited Grounds for Termination (s.659)..............................................................................153.1.2 Other Unlawful Termination Grounds............................................................................................16

3.2 CONSIDERATIONS IN RUNNING AN UNLAWFUL TERMINATION............................................163.2.1 Cost of Running an Unlawful Termination.................................................................................163.2.2 IOs RUNNING UNLAWFUL TERMINATION CASE..................................................................173.2.3 UTAS......................................................................................................................................... 173.2.4 Time.......................................................................................................................................... 17

3.3 ONUS OF PROOF........................................................................................................................ 183.4 REMEDIES: UNLAWFUL TERMINATION (S.665)........................................................................183.5 STEP BY STEP GUIDE TO COMMENCING AN UNLAWFUL TERMINATION ...........................19

4. ALTERNATIVE AVENUES.................................................................................................................... 204.1 DISCRIMINATION......................................................................................................................... 204.2 BREACH OF CONTRACT.............................................................................................................204.3 ACTION FOR TRADE PRACTICES BREACHES.........................................................................20

5. BARGAINING FOR FAIR DISMISSAL PROVISIONS..........................................................................205.1 UNION COLLECTIVE AGREEMENTS..........................................................................................205.2 MOUS AND DEEDS...................................................................................................................... 21

-2-


1. OVERVIEW

This paper attempts to provide you with a comprehensive guide to the ins and outs of running an unfair dismissal or unlawful termination under the Workplace Relations Act 1996 (Cth) (“WR Act”).

The changes to the WR Act have significantly cut the right of many workers to access the federal unfair dismissal jurisdiction. While some workers will still have the option of pursuing an unlawful termination claim in the Federal Court, unlawful termination has to date been approached cautiously by Unions because of concerns about expense and delayed process.

This paper will consider:

The key changes to unfair dismissal, in particular the ‘100 employee’ and ‘operational reasons’ exemptions to accessing the unfair dismissal jurisdiction.

The option of pursuing unlawful termination in the Federal Court, including tips to reduce costs and consideration of time factors.

Alternative avenues to unfair or unlawful dismissal claims.

Using bargaining to negotiate fair dismissal provisions.

-3-


2. UNFAIR DISMISSAL

2.1 WHAT IS UNFAIR DISMISSAL?

Unfair dismissal is where the termination was “harsh, unjust or unreasonable”: s.643(1)(a).

2.2 WHO CAN MAKE AN UNFAIR DISMISSAL APPLICATION? Rather than define who can make an unfair dismissal application, the WR Act specifically excludes a significant number of employees from making applications. These exclusions fall into the following categories:

2.2.1 EXEMPTIONS (S.643)All employees covered by the federal system (employees of constitutional corporations, Territory employees, Victorian employees etc.) can make an unfair dismissal application except the following:

An employee employed by an employer with 100 or fewer employees: s.643(10); (considered below at 2.3)

An employee dismissed during their qualifying period (now defined as the first six months of employment (previously three months) or within a longer or shorter qualifying period agreed in writing in advance of the commencement of employment): s.643(6)-(7); (considered below at 2.4)

An employee dismissed for ‘genuine operational reasons’: s.643(8). (considered below at 2.5).

2.2.2 TRADITIONAL EXCLUSIONS (S.638)The kinds of employees excluded from accessing the federal unfair dismissal jurisdiction are: An employee engaged under a contract of employment for a specified period or

for a specified task;

An employee serving a probationary period determined in advance (NB: If the probationary period is more than 3 months, it needs to be reasonable having regard to the circumstances of the employment);

A casual employee engaged for a short period (less than 12 months but see s.638(5) where a casual is engaged for a sequence of periods of employment);

A trainee employed for a specified period;

A non-award or non- workplace agreement employee whose remuneration was in excess of specified rate (current specified rate is $94,400).

-4-


2.2.3 NEW EXCLUSION A seasonal employee (NB: complex definition of seasonal in s.638(9) –

employment for a seasonal period is expressly excluded even where the end of the season is not know at the commencement of employment).

2.2.4 OTHER EXCLUSIONS An employee continuing other related termination proceedings eg. under

discrimination legislation:s.672;

An employee whose employment is not terminated at the initiative of the employer : s.643(1).

Termination at the initiative of the employer and constructive dismissalWhere an employee alleges they were constructively dismissed, the onus of proof has been reversed so that the employee must now establish that he or she did not voluntarily resign but that the employer’s actions left them with no other option other than to leave.

‘The resignation of an employee is taken to constitute the termination of the employment of the employee at the initiative of the employer if the employer can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer’: s.642(4).

2.3 100 OR FEWER EMPLOYEES (s.643(10)-(12))Employees of businesses who employ 100 employees or fewer, are not able to access the federal unfair dismissal jurisdiction i.e. businesses with 101 employees or more are subject to the unfair dismissal regime.

2.3.1 WHO AND WHEN

In determining the number of employees the following are taken into account:

permanent full time and part time employees The terminated employees regular casual employees (employed on a regular and systematic basis for at least

12 months) employees of “related bodies corporate” (considered below at 2.3.2) “an employee within the ordinary meaning of the expression” (636(b)) managerial and administrative staff

The following are NOT included in the count:

casuals employed by labour hire agency casuals not employed on a regular and systematic basis for at least 12 months contractors

The number of employees is counted at the time the employer gave notice of termination or at the time dismissal takes place, whichever happens first.

-5-


2.3.2 RELATED BODIES CORPORATE

There is limited protection against corporate restructuring to avoid the 101 employee threshold head count in that related bodies corporate (within the meaning of s.50 of the Corporations Act 2001 (Cth) (“Corps Act”)) are taken to be one entity for the purpose of calculating the number of employees engaged by an employer. Section 50 of the Corps Act provides as follows:

“50 Related bodies corporate

Where a body corporate is a. a holding company of another body corporate; b. a subsidiary of another body corporate; or c. a subsidiary of a holding company of another body corporate;

the first- mentioned body and the other body are related to each other:”

A ‘holding company’ means a body corporate which has a subsidiary (see section 9 of the Corps Act ).

A company is a subsidiary of another company if the other company:a. controls the composition of its board; or b. can cast more than one-half of the maximum number of votes at a general

meeting orc. holds more than one-half of its issued share capital.

The relevant section of the Corps Act can be found at Appendix A to this paper.

Overseas companies may be related bodies corporate: Baldacchino & Others v Triangle Cables PR972581 where it was found Companies in Singapore and NZ each constituted a related body corporate

2.3.3 EVIDENCE REGARDING 100 EMPLOYEES AND RELATED BODIES CORPORATE

In cases where it is not clear whether an employer employs over 100 employees, evidence becomes the primary issue. It can be difficult to obtain evidence on how many employees are employed by a company, if there are any related body corporate and how many employees are employed by related body corporate.

Tips internet search Company name Search Australian Securities and Investment Commission (ASIC) for financial

statements and reports (www.asic.gov.au ) ASIC search for related body corporate Summons to produce payroll register Summons to produce communications with related companies

-6-


2.3.4 SHAM ARRANGEMENTS/ JOINT EMPLOYMENT

There is nothing in the legislation that expressly prohibits restructuring to avoid unfair dismissal. However, it may be possible to argue that restructuring primarily for the purpose of avoiding unfair dismissal is a sham arrangement and should not exclude an employer for unfair dismissal (See Baldacchino & Others v Triangle Cables PR972581). It may also be possible to make a joint employment argument – i.e. if an employee is employed through a contractor, but for all intense and purposes is controlled by the employer, the employee should be counted as part of the 100.

Useful evidence: Evidence on who controls workers, Any documents to do with the set up of the Agency or Contractor (eg contract

between the Employer and the Agency; Articles of association)

Example: Baldacchino & others v Triangle Cables PR972581 (24 May 2006)Nine factory workers at manufacturer Triangle Cables were dismissed via letter on 28 March 2006, one day after the new legislation took effect. The employees were dismissed without a reason and were only told that their services were no longer required. The employees were not given any redundancy pay. The employees filed an unfair and unlawful dismissal application.

The employer filed a Notion of Motion to dismiss the employee’s unfair dismissal application for want of jurisdiction on that basis that the employer employed less than 101 employees.

The Commission heard evidence in relation to the arrangements of related companies and also heard that the employer had utilised workers from three labour hire companies. The applicants argued that the company restructured its corporate arrangements in 2005 and used the labour hire companies to keep under the 101 employee head count. The employer argued that none of the labour hire companies were a related body corporate.

The Applicants further argued that a number of overseas companies were “related body corporate” and their employees should be included in the count.

Smith C found that the labour hire companies were not related bodies corporate. Smith C was prepared to find that some of the overseas companies were related bodies corporate and that their employees should be counted. Ultimately Smith C found that the company employed 97 employees and struck out the unfair dismissal part of the application.

Smith C raised the possibility that employees in a similar situation might be able to argue that the corporate structures using labour hire companies were a “sham”.

Conciliation took place in relation to the unlawful dismissal claims with the employees arguing that they were unlawfully discriminated against because of their union membership or union activity and/or workcover claims. Conciliation failed and the Commission issued certificates stating that the employees’ claims had merit.

The unlawful dismissal applications are now before the Federal Court.

Other cases concerning the 100 or fewer employees exemption:Gillard v My Chemist Health and Beauty PR972832 (31 May 2006)Berryman v Residential Truss Systems Pty Ltd PR973025 (8 June 2006)Wallace v Unistak Transport Services PR973662 (14 June 2006)

-7-


2.4 EXTENSION OF QUALIFYING PERIOD (s.643(6)-(7))The qualifying period is a separate concept under the WR Act from the probationary period.

An employee must not make an unfair dismissal application unless the employee has completed the qualifying period of employment with the employer at the time the employer gave notice of termination or at the time dismissal takes place, whichever happens first.

The default qualifying period is now six months. Thus, most employees who have been employed for less than six months will not be able to access the federal unfair dismissal jurisdiction.

However, there is capacity to reduce or extend the qualifying period provided that there is written agreement as to the length of the qualifying period prior to the commencement of employment. One possibility is to negotiate a reduced qualifying period into a Workplace Agreement or Deed/MOU. The Agreement clause needs to require that the employer inform new employees of the reduced qualifying period in writing prior to engagement.

Example: NUW model clause Probationary Period and Qualifying Period of Employment(Insert lesser period if applicable)The employer may initially engage a full-time or part-time employee for a maximum probationary period of three months for the purpose of determining the employee’s suitability for ongoing employment. The probationary period shall also constitute the maximum qualifying period of employment. The employee must be advised in writing in advance that the employment is probationary, the duration of the probationary period, and that the probationary period also constitutes the qualifying period of employment. Probationary employment forms part of an employee’s period of continuous service.

-8-


2.5 GENUINE OPERATIONAL REASONS (s.643(8)-(9))

Under the WR Act, no claim for unfair dismissal can be successfully made against an employer, irrespective of the size of their workplace, if the employee was dismissed for ‘genuine operational reasons’, or for reasons that include genuine operational reasons.

Operational reasons are defined as reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment, service or business, or to a part of the employer’s undertaking, establishment, service or business: s.643(9).

If an employee makes an unfair dismissal application and the employer objects because the employment was terminated for genuine operational reasons, the Commission must hold a hearing to establish whether or not the operational reasons were genuine. The Commission can dismiss the application if it finds that the operational reasons were genuine. A finding by the Commission that it is not satisfied that the operational reasons relied upon by the employer were genuine can be appealed to the Full Bench: s.649(3).

2.5.1 WHAT IS MEANT BY ‘GENUINE OPERATIONAL REASONS’?

Some initial commentary suggested that the ‘genuine operational reasons’ exemption was limited to employees made redundant i.e. employees genuinely made redundant could not argue that they had been unfairly dismissed eg. on the basis of unfair treatment when selected for redundancy. However, the ‘genuine operational reasons’ exemption may be much broader in scope than just a redundancy situation. For example it appears to include situations such as Cowra abattoir where the positions were not redundant, but for “operational reasons” the employer wanted to pay someone less for doing the job. It is worth noting that if parliament had intended to limit the ‘genuine operational reasons’ exclusion to a genuine redundancy situation, it could have done so by expressly referring to redundancy.

As the termination only needs to be for reasons that include genuine operational reasons there is the potential for the ‘genuine operational reasons’ exemption to provide a basis for all employers (large and small) to terminate employment without due process. An employer will be able to target a particular employee for redundancy and provided that the employer can defend the redundancy in terms of a business need for efficiency or restructuring, the employee cannot complain about the unfairness of being targeted.

2.5.2 IS IT A GENUINE OPERATIONAL REASON FOR TERMINATION?

The primary argument against a Company raising genuine operational reasons as a means of avoiding unfair dismissal will be that it isn’t a ‘bona fide’ genuine operational reason – that is not genuine. This may be very difficult to prove, particularly because the Commission tends to uphold the employer’s right to determine what its operational requirements are. In most cases an employer will not be silly enough to make someone redundant and then immediately hire a replacement. You may need to summons Company documents going to the question of “genuineness” (eg profit and loss statements, new and continuing contracts etc).

-9-


You may also be able to argue that the actual termination was not operationally required. In the recent case Perry v Savills (Vic) Pty Ltd PR973103 SDP Watson found that while there may be a genuine operational reason to restructure, this does not automatically mean there is a genuine operational reason for termination (see examples in box below).

Of course, evidence for the “real” reason for termination will be important. Even if an employee is excluded from unfair dismissal because of operational reasons they may still have an action under an unlawful termination claim or an alternative avenue (see below).

2.5.3 REDUNDANCY PAY

Note, if an employee has been terminated for “genuine operational reasons” and has an entitlement to redundancy which has not been paid, the matter should be pursed in the Magistrates Court.

Example: Cowra abattoirThe owners of Cowra Abattoir terminated 29 employees and sought to rehire some of them on lower wages. With the subsequently publicity, the owners then reversed this decision.

The issue that emerged was whether Cowra Abattoir’s actions in trying to sack the employees and rehire some of them on lower wages were lawful under the WR Act.

The Freedom of Association provisions in the WR Act prevent an employer from dismissing an employee or discriminating against an employee for a prohibited reason or for a reason that includes a prohibited reason. One prohibited reason is if the employee is ‘entitled to the benefit of an industrial instrument, an order of an industrial body or Australian Fair Pay Conditions Standard’. Here, it could be argued that the employees were dismissed because they were entitled to the benefit of an industrial instrument.

However, the WR Act has been amended so that an employer will not be acting for a prohibited reason unless the prohibited reason is the ‘sole or dominant reason’ for the employer acting unlawfully towards the employee: s.792. Under this defence, there appears to be broad scope for employers to avoid a contravention of the freedom of association provisions if they can establish that the prohibited reason was not the sole or dominant reason for dismissing an employee.

Alternatively, an employer might be able to argue that terminations are for ‘genuine operational reasons’.

The Office of Workplace Services conducted an investigation into the Cowra Abattoir situation and found that the Abattoir had acted lawfully. This was because the dominant reason for the proposed sackings was the company’s financial viability and not for the prohibited reason that the employees were entitled to the benefit of an industrial instrument.

Example: Perry v Savills (Vic) Pty Ltd PR973103 (20 June 2006)This case is an example of where the Commission rejected an employer’s ‘genuine operational reasons’ argument in relation to an unfair dismissal claim.

The employee was a financial manager who was made redundant.

The employer filed a Notion of Motion to dismiss the employee’s unfair dismissal application for want of jurisdiction on that basis that the employment was terminated for ‘genuine operational reasons’ or for reasons that included this.

-10-


Watson SDP found that the employee’s job had been abolished for genuine operational reasons as the job had been removed in a restructure that sought to combine two roles into one, to reduce wage costs and to provide greater efficiency. However, His Honour found that this didn’t necessarily mean that the employer could rely on ‘genuine operational reasons’ defence as:

‘The statutory test is whether Ms Perry’s ‘employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons’, rather than where there were genuine operational reasons for the restructuring of her position….The restructuring of positions so that an employee’s position is no longer available does not, in itself, establish operational reasons for the termination of an individual employee’s employment. The termination must be ‘genuinely’ related to the employer’s operational requirements in the sense that the termination is a logical response to those requirements.’ [para 41]

His Honour considered the meaning of the word “genuine” in the context of s.643, in dictionary definitions and in traditional usage concerning industrial disputes.

His Honour found that there was no operational reasons for the employee’s dismissal and was satisfied by evidence that the employer had the ‘operational ability’ to retain the employee as the company was expanding and an alternative position could have been created given the employee’s high level of skills.

Example: Azwar Koya v Port Phillip City Council. PR973045 (13 June 2006)This case is an example of where the Commission has found that it has no jurisdiction to hear an unfair dismissal application because of the ‘genuine operational reasons’ exclusion.

In this case, an IT officer claimed that he was unfairly dismissed when he was made redundant and that the restructuring which led to his dismissal was a sham or contrived to remove him from his job.

The employer filed a Notion of Motion to dismiss the employee’s unfair dismissal application for want of jurisdiction on that basis that the employment was terminated for ‘genuine operational reasons’ or for reasons that included this and on the ground that the application was frivolous, vexatious or lacking in substance.

Ives DP found that the employee was unable to ‘cast any shadow’ over the council’s evidence that it had dismissed him for genuine operational reasons.

His Honour stated that:

‘The practical effect of an exclusion from jurisdiction if a genuine operational reasons is among the reasons for the termination of employment is that few applications where a respondent employer claims such genuine operational reasons will be able to be dealt with beyond a jurisdictional hearing. This is so because an employee’s ability to produce evidence to successfully challenge the claim that a genuine operational reason was among the reasons for termination will be beyond most employees’ capabilities and resources.’ [para 20]

-11-


2.6 PROCESSES IN THE COMMISSION

2.6.1 TIME LIMITS FOR DISMISSAL APPLICATIONS

A dismissed employee may apply to the Commission for relief on the ground that the termination was: Harsh unjust or unreasonable (unfair dismissal); An alleged contravention of any one or more of s.659, 660 or 662 (unlawful

dismissal); Or both unfair and unlawful dismissal.

Application for Relief of Termination of Employment forms can be downloaded from the Commission website (www.airc.gov.au). A dismissal application must be lodged in the Commission within 21 days after the date of the termination or within such extra period as the Commission allows: s.643(14). There is a $51.40 filing fee: s.644.

There is no right of appeal to a Full Bench against a decision of the Commission to extend, or to refuse to extend, the time for lodgement of an unfair dismissal application: s.685(3).

2.6.2 DISMISSAL OF APPLICATION FOR WANT OF JURISDICTION OR WHERE APPLICATION IS FRIVOLOUS OR VEXATIOUS

An employer may move for dismissal of a dismissal application on the ground that the application is outside the jurisdiction of the Commission at any time: s.645(1). Where the employer moves for the dismissal of an application for want of jurisdiction before the matter is referred for Conciliation, the Commission must deal with the motion before taking any action on the application unless the employer indicates that the matter may be dealt with at a later time: s.645(2).

An employer may also move for dismissal of an unfair dismissal application on that basis that it is frivolous, vexatious or lacking in substance: s.646.

‘On the Papers’The Commission is able to deal with certain matters ‘on the papers’ without the necessity of a formal hearing. Examples of matters that the Commission is able to deal with ‘on the papers’ are hearings for unfair dismissal based on jurisdictional objections, applications that are frivolous, vexatious or lacking in substance and extension of time matters: s.645(7) & s.646(3), s.647 & s.648.

No right of appeal to Full BenchThere is no right of appeal to a Full Bench against an order of the Commission dismissing an unfair dismissal application for want of jurisdiction because: the employee is excluded from operation of subdivision B by s.638 (traditional

exclusions such as probationary employees, short-term casuals, trainees etc,); or the employee is excluded because they are serving a qualifying period; or the employee is excluded because the employer has 100 employees or fewer.s.645(5) and s.685(3)

-12-

http://www.airc.gov.au/


There is no right of appeal to a Full Bench against an order of the Commission dismissing or refusing to dismiss an unfair dismissal application challenged on the basis it is frivolous, vexatious or lacking in substance: s.685(3).

2.6.3 CONCILIATION (s.650)The Commission conducts conciliation of unfair and unlawful dismissal applications.

If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are unsuccessful, the Commission must issue a certificate to this effect. The Commission: must indicate to the parties the Commission’s assessment of the merits of the

application; may recommend that an applicant elect not to pursue a ground or grounds of the

application must advise the parties if the application has no reasonable prospect of success.

‘What a pimple to have created such a fuss’: Paul MunroThere are approximately 16,000 unfair dismissal claims made annually under the state and federal industrial relations systems, which is a tiny proportion of the total workforce. The small number of dismissal claims was described by Paul Munro as ‘what a pimple to have created such a fuss’. In the federal system, the Commission entertained 6,707 applications for unfair dismissal in the 12 months between July 2004 and June 2005. 77% of these applications were settled by conciliation and an additional number were settled shortly afterwards. Only 3% of applications proceeded to final application.

2.6.4 ELECTING TO PROCEED FURTHER (s.651)The applicant then has seven days after the day of issue of the certificate to lodge an election to proceed (twenty-eight days to lodge an election to proceed where the certificate deals with a s.659 (discrimination grounds) unlawful dismissal: s.651(6).

If there is late lodgement outside the seven day period, the application is taken to have been discontinued. No right of appeal to a Full Bench lies. However, an extension of time for lodgement of the twenty-eight day election may be granted if the Commission considers it unfair not to do so: s.651(7)-(10).

2.6.5 ARBITRATION: UNFAIR DISMISSAL (s.652)The Commission conducts arbitration of unfair dismissal applications.

The Commission considers whether the employer has afforded a ‘fair go all round’ to the employee whose employment has been terminated. In determining whether a termination was ‘harsh, unjust or unreasonable’ the Commission must assess the following factors:

Whether there was a valid reason for the termination related to the employee’s capacity or conduct;

Whether the employee was notified of that reason; Whether the employee was given the opportunity to respond to any reasons related

to the capacity or conduct of the employee; Whether the employee had any warnings about their performance; The degree to which the size of the employer’s undertaking would be likely to

impact on the procedures followed in effecting termination;

-13-


The degree to which the absence of dedicated human resource management specialists or expertise in the undertaking would be likely to impact on the procedures followed in effecting termination;

Any other matters the Commission considers relevant.

The Commission must also have regard to a new factor, namely whether the employee’s capacity or conduct may have put at risk the safety of welfare of other employees. This appears to broaden the scope of what might constitute a valid reason for termination.

2.6.6 REMEDIES: UNFAIR DISMISSAL (s.654)The termination of employment remedies available to the Commission remains unchanged. If the Commission considers that the termination was ‘harsh, unjust or unreasonable’ the Commission may make various orders including:

Reinstatement, continuity of employment and lost remuneration;

Monetary compensation of up to six months remuneration for an employee covered by an award or workplace agreement or $32,000 for others.

Form of remedy considerations are the effect on the employer, the employee’s length of service, lost remuneration, mitigation efforts by the employee and other relevant matters.

The WR Act now requires the Commission to consider additional criteria when awarding reinstatement or compensation as follows:

When ordering reinstatement, the Commission must consider any income earned by the employee from work performed between the date of termination and the order for reinstatement and any income that is reasonably likely to be earned between the date of the order for reinstatement and the actual reinstatement.

The Commission must reduce the level of compensation ordered if it is of the view that the employee’s misconduct contributed to the dismissal.

The Commission must not award compensation for shock, distress or humiliation caused to the employee by the manner in which their employment was terminated.

2.6.7 COSTS (s.658)The Commission may order costs where: Proceedings were begun where there was no reasonable prospect of success. There was an unreasonable failure to discontinue proceedings or agree to terms of

settlement. There was an unreasonable act or omission by a party or their representative

connected to the conduct of a processing and which causes costs.

-14-


3. UNLAWFUL TERMINATION

Unlawful termination has not been substantially changed by the new legislation. It only provides relief to employees who have been terminated in certain circumstances.

3.1 GROUNDS FOR UNLAWFUL TERMINATION The grounds on which it is unlawful to terminate an employee have not changed.

Unlawful termination is where the termination was for one or more of the following reasons, or for reasons including one or more of the following reasons:

3.1.1 PROHIBITED GROUNDS FOR TERMINATION (s.659) Temporary absence from work because of illness or injury

(NB: Temporary absence is an absence of less than three months or total absences of less than three months in a twelve month period; medical certificate must be provided; terms of Award or Agreement must be complied with)

union membership or activities;

non-membership of a union;

seeking office as, or acting in the capacity of, a representative of employees;

involvement in proceedings against an employer;

race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin (NB: defence where reason for termination is based on the inherent requirements of the particular position);

refusing to negotiate, make, sign, extend, vary or terminate an AWA; (NB 400(6) states an employer does not apply duress by requiring a person sign an AWA as a term of engagement).

absence from work due to parental leave;

temporary absence from work due to voluntary emergency work;

Where the unlawful dismissal application is based on s.659 (discrimination grounds), all employees can make such an unlawful dismissal application except:

an employee continuing other related termination proceedings:s.674;

an employee whose employment is not terminated at the initiative of the employer: s.643(1).

-15-


3.1.2 OTHER UNLAWFUL TERMINATION GROUNDS

Failure to notify Centreline (s.660 and reg 12.9) Failure to notify Centrelink of proposed terminations where more that 15 employees

are to be terminated for reasons of an economic, technological, structural or similar nature. There are some limits on who can apply under this provision. (see s.638).

Failure to give notice grounds (s.661 and reg 12.13) Failure to give the required period of notice or payment in lieu of notice (NB: this is

not applicable where serious employee misconduct or termination relating to a specified succession, assignment or transmission of business). This matter can be pursued in the small claims division of the Magistrates’ Court. This is a relatively inexpensive jurisdiction. There are some limits on who can apply under this provision. (see s.638).

This presentation will concentrate on s.659 – Prohibited Grounds for termination.

3.2 CONSIDERATIONS IN RUNNING AN UNLAWFUL TERMINATION

Until recently unlawful termination has been approached cautiously by Unions because running matters in the Federal Court can be costly and time consuming. However, the effective removal of unfair dismissal as a viable option means Unions have to consider using Unlawful Termination. This paper attempts to give tips for Unions to minimise costs and time delays. At 3.3 you will find a step by step guide to commencing an unlawful termination.

3.2.1 COST OF RUNNING AN UNLAWFUL TERMINATION

An unlawful termination application is not much more expensive than an unfair dismissal application. Currently the cost of lodging an unlawful termination is about $100. This includes an initial application to the Commission - currently $51.40; and a later application to the Federal Court currently $52.40. (see below under for details of application forms). The Federal Court fee may be waived in special circumstances.

Unlawful termination in the Federal Court is a cost free jurisdiction except where a court is satisfied that proceedings were instituted vexatiously or without reasonable cause; or a party caused costs to be incurred by the other party because of an unreasonable

act or omission.

(The cost provisions in the Federal Court are narrower than the cost provisions in the Commission).

The real cost is potential legal fees. These costs may be reduced by:

seeking the matter is heard in the Federal Magistrates’ Court, a more informal jurisdiction

Industrial Officers running all or part of an unlawful termination cases Possible funding of legal advice through UTAS

-16-


3.2.2 IOs RUNNING ALL OR PART OF AN UNLAWFUL TERMINATION CASE

The legislation specifically provides that a Union can make an unlawful termination application to the Federal Court on behalf of a member (s663(3)). This is reflected in the Application forms. The Application forms (Form 5A and Form 5) are fairly straight forward and can be downloaded from the Federal Court web site (www.fedcourt.gov. au ). An example is attached at Appendix B.

The legislation specifically provides that an employee who is a member of the Union can be represented by the Union in proceeding before the Federal Court including unlawful termination – 854(10) (b).

There is a mediation prior to trial (see below at 3.3)

Even by commencing their own Applications and taking the matter through to mediation before handing the matter over to lawyers, Unions will cut potential legal costs.

3.2.3 UTAS

In a very limited number of circumstances you may be able to apply for monetary assistance for legal advice on the merits of an unlawful dismissal application. The Unlawful Termination Assistance Scheme can provide vouchers of up to $4000 to applicants where:

the Commission has issued a certificate stating that the employee’s claim has merit and the claim could not be conciliated; and

the Office of Workplace Services has determined financial eligibility (limited to employee on average weekly earnings of $915.70 – approx $48,000 per year, unless employees qualify for special consideration).

Applications for funding must be lodged within 14 days of the Commission certificate and legal action in the Federal Court must commence within 28 days of the Commission certificate.

However, even if you are successful in applying for a UTAS voucher, it is only of limited use. The funding is only for legal advice. The lawyers providing the advice are expressly excluded from representing the applicant in a Court hearing.

3.2.4 TIME

A date will be set for a directions hearing when you lodge an unlawful termination application in the Court. Directions will set a time frame for the issuing of affidavit, submissions and discovery. The parties usually agree to consent directions prior to the directions hearing. (See draft consent directions at Appendix C) A rule of thumb is that 2 weeks be allowed to each party for the filing of submissions and discovery.

Directions will also include a mediation to be held by a Court appointed mediator, usually a Registrar. This mediation can take place either before or after the filing of submissions.

While the length of time an unlawful termination will take will depend on the individual case, it is possible for the entire process to occur within 6 months.

-17-

http://www.fedcourt.gov.au/


3.3 ONUS OF PROOF

In unlawful dismissal applications, the employee does not have to prove the termination was for a proscribed reason (eg. discrimination grounds). The burden of proof is on the employer to prove that the termination was not for a proscribed reason or for a reason that included a proscribed reason. Note that the employer has a defence if they can show that the termination was for a reason or reasons other than a proscribed reason: s.664.

3.4 REMEDIES: UNLAWFUL TERMINATION (s.665)If the Federal Court finds that an employer dismissed an employee for a proscribed reason (discrimination grounds) it may make one or more of the following orders:

Impose a penalty of not more than $10,000 on the employer; Reinstatement; Compensation of not more than six months pay (limit of $32,000 for non-award

employees which is indexed).

The Federal Court must not award compensation for shock, distress or humiliation caused to the employee by the manner in which their employment was terminated.

-18-


3.5 STEP BY STEP GUIDE TO COMMENCING AN UNLAWFUL TERMINATION (PROHIBITED REASON) IN THE FEDERAL COURT

21 DAYS TO LODGE APPLICATION IN AIRCWithin 21 days of termination lodge an Application for Relief in Relation to Termination of

Employment in the AIRC. The cost is currently $51.40. Make sure you identify s659 (discrimination or other prohibited reasons) as the ground on which the application is based.

AIRC CONCILIATION CONFERENCE & ISSUING OF CERTIFICATE

The AIRC will hold a conciliation conference. If conciliation is unsuccessful, the AIRC will issue a certificate stating that the conciliation was unsuccessful and indicating the AIRC assessment of the

merits.

28 DAYS TO LODGE AN ELECTION IN THE AIRC

After receiving the certificate from AIRC the applicant has 28 days to lodge an election in the AIRC electing to commence proceedings in the Federal Court. (s6516(b))

(14 DAYS TO LODGE AN APPLICATION TO UTAS)If the Commission has issued a certificate that the application has merit consider UTAS

application. (Must be lodged within 14 days of the certificate).

14 DAYS TO LODGE AN APPLICATION IN THE FEDERAL COURT

Application to the Federal Court must be made within 14 days after the lodgement of the election in the AIRC (663(6)). The application consists of a Form 5 Application and a

Form 5A- Claim of Unlawful Termination of Employment (see Appendix B). The Application forms can be downloaded from the Federal Court web site (www.fedcourt.gov.au). The cost of the

Application is $52.40.

DIRECTIONS AND STATEMENT OF CLAIM

The matter will be listed for a directions hearing when it is lodged. Directions hearing will issue directions programming the matter for hearing. Usually, orders can be agreed between the parties

prior to the directions. An example of draft consent orders is attached at Appendix C.

STATEMENT OF CLAIM

Usually the first step will be for the Applicant to file a brief statement of claims. A statement of claims form can be downloaded from the Federal Court web site (Form 7) See Appendix D. The

statement of claims can be very brief. It needs to set out which section of the WR Act you are bringing the case under, why you say the employee was unlawful terminated and the remedies you

are seeking. The Respondent will then file a Defence.

-19-

http://www.fedcourt.gov.au/


4. ALTERNATIVE AVENUES

4.1 DISCRIMINATIONOne alternative to the Federal Court is to bring a claim of termination based on discrimination grounds in HREOC or one of the various state based discrimination tribunals.

4.2 BREACH OF CONTRACTSome dismissed employees may be able to seek redress by pursuing a common law claim for breach of contract. This area has traditionally only been sued by high earning executives, and it is an undeveloped area of law. An applicant would need to establish that an expressed or implied term of the employment contract had been breached by the termination.

Expressed Provisions: Expressed provisions might include procedures that must be followed prior to termination occurring. A contract may expressly incorporate Company policy on termination procedure. However, the majority of union employees will not have detailed contracts with expressed provisions.

Implied Provisions: Company policies may be implicitly included in the employment contract. (eg Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 Wilcox J, 23 June 2006; Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; 177 ALR 193). There is also an implied duty of mutual trust and confidence – it is still contentious whether this implied duty gives rise to a right to be terminated fairly.

4.3 ACTION FOR TRADE PRACTICES BREACHESSome commentators have thought an action for termination may be bought under section 52 of the Trade Practices Act 1974. Section 52 provides that “A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” However, at this point it is far from clear whether this provision applies to conduct by a corporation in relation to employees.

5. BARGAINING FOR FAIR DISMISSAL PROVISIONS

5.1 UNION COLLECTIVE AGREEMENTS

The amended WR Act expressly prohibits including clauses in workplace agreements which provide a right to employees in relation to a termination which is harsh, unjust or unreasonable. However, the Act does not prohibit clauses relating to disciplinary and termination procedures. Accordingly, Unions can negotiate clauses that require a number of procedures to occur prior to any termination taking place, such as formal meeting to discuss the potential dismissal. This maximises our chances of being able to deal with potential terminations before they occur. Furthermore if there is a dispute about procedures in the Agreement or the procedures are not followed, the matter can be dealt with under the disputes procedure.

-20-

http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/784.html


EXAMPLE: NUW MODEL CLAUSE

1. DISCIPLINARY PROCEDURE AND TERMINATION1.1. In circumstances where an employee’s conduct or performance is not acceptable the

following procedure shall be followed.1.2. Management shall counsel the employee about their conduct or performance as

required. This will be regarded as a verbal warning.1.3. If the employee’s conduct or performance does not improve, or if an employee engages

in conduct which warrants a formal warning, the employee shall be counselled formally by management which may issue a first written warning. The employee may invite another person, including a union delegate, to be present at this meeting.

1.4. If the employee’s conduct or performance does not improve following a first written warning, a second warning shall be provided to the employee by management. The employee may invite another person, including a union delegate, to represent them at this meeting.

1.5. If the employee’s performance or conduct does not improve, the employee will receive a final warning. Any further failure to improve in performance or conduct may result in the dismissal of the employee.

1.6. Where an employee is to be counselled he or she shall have reasonable time to discuss the matter with his or her representative prior to being interviewed.

1.7. Termination1.7.1. Prior to reaching any decision to terminate the employment of an employee, the

employer will:a. inform the employee that the termination of their employment is being

considered;b. advise the employee of the reasons for termination; andc. provide the employee with an opportunity to show cause why their

employment should not be terminated.1.7.2. An employee shall be given reasonable time to respond and shall be provided with

details of any relevant material. An employee may be represented by a representative of their choice including a union delegate or union official.

1.7.3. Any request by the employee to meet and discuss the matter shall not be unreasonably refused.

1.8. Any dispute over the operation or application to this clause shall be settled in accordance with the disputes procedure of this agreement.

5.2 MOUS AND DEEDS

There may be scope for including provisions dealing with unfair and unjust terminations in MOUs and Deeds and having the matter dealt with by an agreed arbitrator. You must ensure that the MOU or deed lists the arbitrator’s powers including reinstatement and compensation.

-21-


APPENDIX A

RELEVANT SECTIONS OF CORPORATIONS ACT 2001 (CTH) IN RELATION TO RELATED BODIES CORPORATE

CORPORATIONS ACT 2001 - SECT 46 What is a subsidiary

A body corporate (in this section called the first body ) is a subsidiary of another body corporate if, and only if:

(a) the other body:

(i) controls the composition of the first body’s board; or

(ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first body; or

(iii) holds more than one-half of the issued share capital of the first body (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b) the first body is a subsidiary of a subsidiary of the other body.

CORPORATIONS ACT 2001 - SECT 47 Control of a body corporate’s board

Without limiting by implication the circumstances in which the composition of a body corporate’s board is taken to be controlled by another body corporate, the composition of the board is taken to be so controlled if the other body, by exercising a power exercisable (whether with or without the consent or concurrence of any other person) by it, can appoint or remove all, or the majority, of the directors of the first-mentioned body, and, for the purposes of this Division, the other body is taken to have power to make such an appointment if:

(a) a person cannot be appointed as a director of the first-mentioned body without the exercise by the other body of such a power in the person’s favour; or

(b) a person’s appointment as a director of the first-mentioned body follows necessarily from the person being a director or other officer of the other body.

CORPORATIONS ACT 2001 - SECT 48 Matters to be disregarded

(1) This section applies for the purposes of determining whether a body corporate (in this section called the first body ) is a subsidiary of another body corporate.

(2) Any shares held, or power exercisable, by the other body in a fiduciary capacity are treated as not held or exercisable by it.

(3) Subject to subsections (4) and (5), any shares held, or power exercisable:

(a) by a person as a nominee for the other body (except where the other body is concerned only in a fiduciary capacity); or

(b) by, or by a nominee for, a subsidiary of the other body (not being a subsidiary that is concerned only in a fiduciary capacity);

-22-

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#subsidiary

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#body




http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#person

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#power



http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1276.html#body_corporate





http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s416.html#officer

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#director












http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#have







http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#control

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#board









http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#capital

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#amount

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s1371.html#right


http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#issue




http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#hold












are treated as held or exercisable by the other body.

(4) Any shares held, or power exercisable, by a person by virtue of the provisions of debentures of the first body, or of a trust deed for securing an issue of such debentures, are to be disregarded.

(5) Any shares held, or power exercisable, otherwise than as mentioned in subsection (4), by, or by a nominee for, the other body or a subsidiary of it are to be treated as not held or exercisable by the other body if:

(a) the ordinary business of the other body or that subsidiary, as the case may be, includes lending money; and

(b) the shares are held, or the power is exercisable, only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with lending money, not being a transaction entered into with an associate of the other body, or of that subsidiary, as the case may be.

CORPORATIONS ACT 2001 - SECT 49 References in this Division to a subsidiary

A reference in paragraph 46(b) or 48(3)(b) or subsection 48(5) to being a subsidiary, or to a subsidiary, of a body corporate includes a reference to being a subsidiary, or to a body corporate that is a subsidiary, as the case may be, of the first-mentioned body by virtue of any other application or applications of this Division.

CORPORATIONS ACT 2001 - SECT 50 Related bodies corporate

Where a body corporate is:

(a) a holding company of another body corporate; or

(b) a subsidiary of another body corporate; or

(c) a subsidiary of a holding company of another body corporate;

the first-mentioned body and the other body are related to each other.

-23-




http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#holding_company





http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#holding_company












http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#associate

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#transaction

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#money

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#transaction

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s761a.html#security


http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#money







http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#debenture


http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#deed


http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#debenture

http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s9.html#provision





APPENDIX B

APPLICATION FORMS FOR UNLAWFUL TERMINATION IN FEDERAL COURT

FORM 5A AND FORM 5

Form 5A Claim of unlawful termination of employment(Order 48, paragraph 4 (2) (b))

Federal Court of Australia Court use onlyfilenumber

Claim of unlawful termination of employment datereceived

Workplace Relations Act 1996 (Cth) section 170CP

application by the employee alone union - give name of union:

Details of employee

1 full name Mr Mrs Ms Family name given names

2 home address postcode

3 phone (business hours) ( )(after hours) ( )

4 date of birth day/month/year

5 first language English other (specify)

Details of employment

6 employer’s name

7 employer’s trading address or registered office

postcodephone ( )fax ( )

8 work performed for employer (occupation)

9 place of work suburb/town postcode

10 period of employment date started work last date worked / / / /

11 were you given a written notice of termination?

No Yes - I attach a copy

Details of union

12 Is your union acting on your behalf?

No go to 16Yes go to 13

-24-


13 name of union

14 address postcode

15 contact person - name - phone ( ) fax ( )

Details of solicitor

16 Is a solicitor representing you? No go to 20 Yes go to 17

17 solicitor’s name

18 name of solicitor’s firm

19 addresspostcode

DXphone ( ) fax ( )

Notices from the Court

20 Where do you want notices from the Court sent?

address in 2 union in 13-15 solicitor in 17-19 other give details

Remedy sought

21 What are you asking the Court for?

reinstatement compensation other - give details

Declaration

I declare that all the facts in this form are correct and complete to the best of my knowledge and belief.

If a union is applying onbehalf of the employee, a union representative must sign here

I understand that the Court usually arranges for mediation first. If the matter is settled at a mediation conference, it will not be necessary to go to Court.

signature for union date

/ /

The employee must sign this declaration*

name (print) position

signature of employee date

/ /

If a solicitor or representative has prepared the application, that person must sign here

*Note: The application need not be signed by the employee if the Registrar is satisfied that obtaining the employee’s signature would cause undue difficulty or delay AND the claim is made by a trade union on the employee’s behalf, or the application has been prepared by a solicitor or a representative under section 469 of the Workplace Relations Act 1996.

signature of solicitor orauthorised representative date

/ / name (print) position

-25-


-26-


IN THE FEDERAL COURT OF AUSTRALIA

(Insert location of registry) REGISTRY No. of 2

Applicant

Respondent

Form 5 Application (Order 4, rule 1)

(State briefly the nature of the subject of the application or cross-claim and the legislative basis of the court’s jurisdiction to hear it and grant the relief sought. The required statement is not taken to be part of the pleading.)

(Note: The following signature block bounded by two horizontal lines must appear at the foot of the first page of the application. After completion of the application, please cut and paste the signature block as required so that it is correctly located.)

Filed by the Applicant

Name: DX:

Address for service: Telephone:

Facsimile: Ref:

__________________________________________________________________

-27-


A. DETAILS OF CLAIM

On the grounds stated in the accompanying affidavit or statement of claim (or, if applicable, Claim of Unlawful Termination of Employment in accordance with Form 5A), the applicant claims:1. (Specify in numbered paragraphs all final relief sought.)2.3.

B. CLAIM FOR INTERLOCUTORY RELIEF

(Complete this section if you wish to claim interlocutory relief)AND the applicant claims by way of interlocutory relief:1. (Specify in numbered paragraphs all interlocutory relief sought.)2.3.Date: eg, 7 May 20..

(signed, applicant or applicant’s solicitor)

C. NOTICE TO RESPONDENT

(Complete this section if there is a respondent)TO the respondent of (insert address):This application has been set down for the time and place stated below. If you or a legal practitioner representing you do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:(a) the application may be heard;(b) directions may be given for the further conduct of the proceeding;(c) any application for interlocutory relief may be heard.Before any attendance at Court, you must file an appearance in the Registry.Time and date for hearing: (to be entered by Registry unless fixed by Court)Place: (address of Court)

D. ABRIDGMENT OF SERVICE

(Complete this section if the time for service has been abridged)The time by which this application is to be served has been abridged by order made on (insert date) to (insert time and date).

-28-


Date: eg, 7 May 19(signed, Registrar)

E. FILING AND SERVICE

This application is filed by (insert name) for (insert name) whose address for service is (insert address).The applicant’s address is (if the applicant is an individual, specify place of residence or business; if the applicant is a corporation, specify principal place of business).It is not intended to serve this application on any person.ORIt is intended to serve this application on each person listed below:(insert name of each person on whom application is to be served)

Version 4

-29-


APPENDIX C

DRAFT CONSENT DIRECTIONS

Form 1(Order 41 rule 1)

IN THE FEDERAL COURT OF AUSTRALIA )VICTORIA DISTRICT REGISTRY ) No. VID XXX/2006

JANE SMITHApplicant

COMPANY PTY LTDRespondent

MINUTES OF PROPOSED CONSENT ORDERS

The Court orders that:

1. The Applicant file and serve a Statement of Claim before Wednesday 7 September 2005

2. The Respondent file and serve a Defence on or before Wednesday 21 September 2005.

3. The proceeding be referred to a Registrar for mediation not before Thursday 22 September 2005.

4. The parties exchange lists of categories of documents (if any) in respect of which they seek discovery on or before Wednesday 28 September 2005 and any objections to discovery in a particular category (if any) on or before Friday 30 September 2005.

5. The Applicants file and serve any affidavits on which they intend to rely on or before 4.00 pm on Friday 14 October 2005.

6. The Applicants file and serve Outlines of Submissions on or before 4.00pm on Friday 14 October 2005.

7. The Respondent file and serve any affidavits on which they intend to rely on or before 4.00pm on Friday 28 October 2005.

8. The Respondent file and serve an Outline of Submissions on or before 4.00pm on Friday 28 October 2005.

9. The proceedings be set for trial

-30-


Date:

..................…………............... .........................................

IOs NameUnion’s Name Union for the Applicant.................................. Solicitors for the Respondent

-31-


APPENDIX D

STATEMENT OF CLAIM

Form 7

IN THE FEDERAL COURT OF AUSTRALIA(insert location of registry) REGISTRY No. of

BETWEEN

(Insert names and descriptions of parties)

Applicant

Respondent

STATEMENT OF CLAIM(Order 4 rule 6 and Order 11)

(Plead as required by the rules)

1.

(Note: The following signature block bounded by two horizontal lines must appear at the foot of the first page of the document. After completion of the document, please cut and paste the signature block as required so that it is correctly located.)

Filed by the ApplicantD.X:

Name: Telephone: Address for Service: Fax: __________________________________________________________________

The applicant claims the relief specified in the application.

-32-


(Particulars under Order 12 may be given as follows, for example:PARTICULARS OF FRAUD (Or Other Appropriate Heading)

(These particulars may appear in the relevant place in the statement of facts or separately at the end of the pleading, whichever is convenient.)

This pleading was prepared by ..................................... counsel/solicitor*

* Omit if inapplicable

-33-

Termination of Employment€¦ · Web viewThe Office of Workplace Services conducted an...

Documents

Transcript of Termination of Employment€¦ · Web viewThe Office of Workplace Services conducted an...