Final Hypothesis & Detailed Structural Plan

Introduction
A brief overview of the subject the essay is going to address
Unfair Dismissal laws should only act as a safety net [for employees]
for protection against extreme behaviour and not an unfair cost to
employers. It is for this reason that a reform to the onus of proof
needed for an employee to submit and an application and compensation
received needs to be changed to ensure a fair and just law for both
stakeholders.
Paragraph 1 Brief summary of Unfair Dismissal Laws and the changes
in Fair Work Act 2009
The unfair dismissal provisions of the Fair Work Act are based on the notion of a
fair go all round and are intended to prevent dismissals that:

are harsh or unreasonable

do not comply with the Small business dismissal code
are not cases of genuine redundancy

A person is dismissed if the persons employment with his or her employer was
terminated on the employers initiative. (Mohzab v Dick Smith Electronics Pty
Ltd) (1995). A person may also be deemed to have been dismissed in
circumstances where the employee left their employment because the
employers behavior left the employee no alternative but to resign
(Constructive dismissal)
Paragraph 2 Amount of Proof needed for claim of unfair dismissal
Under the Fair Work Act an employee has the right to appropriately defend
himself or herself against allegations made by an employer. This obligation
imposed on an employer has two relevant aspects. Firstly, the employee must be
aware of allegations concerning employee's conduct so as be able to respond to
them. Secondly the employee must be given the opportunity to defend him or
herself. The second aspect implies an opportunity that might result in the
employer deciding not to terminate the employment if the defence is of
substance. An employer who simply goes through the motions of giving the
employee an opportunity to deal with allegations concerning conduct when, in
substance a firm decision to terminate had already been made which would be
adhered to irrespective of anything the employee may say in his or her defence,
would not constitute an opportunity to defend. (Wadey v YMCA Canberra) [1996]
or (Dover-Ray v Real Insurance Pty Ltd) [2010]
Employees can file an unfair dismissal application with no consequences
attached, meaning level of proof is minimal compared to standard of procedures
for an employer to defend claims against them.

Chad Gardiner 12F

Paragraph 3 Compensation
Section 392 of the Fair Work Act provides that an order for payment of
compensation to a person lieu of reinstatement is a remedy available to the Fair
Work Commission when a dismissal is deemed to be unfair. Monetary
compensation may be awarded based on guidelines established by precedent
case law (Spriggs v Pauls Licensed Festival Supermarket)
New Remedy/ section if employees are found giving false claims in application of
unfair dismissal employees must pay direct costs for time compiling evidence
and legal costs dealt by the employer.
In Australia, the great majority of unfair dismissal cases are settled without ever
proceeding to a tribunal hearing, and they are settled on the basis of an
unofficial tariff whereby the employer pays what is colloquially referred to as
go-away money. Very few cases proceed to arbitration, and of those that do,
most result in payment of a modest amount of compensation, with the upper
limit for compensation capped at six months pay.

Chad Gardiner 12F