This assessment task is based upon the scenario from a mock trial that was compiled by Fair Work Commission in an unfair Dismissal case.
Click the link to view the YouTube video.
Prepare a report on the case.
The following should be addressed in your report:
Describe the nature of this case.
2. Who were the parties involved?
How did they perceive the case?
Why was this matter brought to the court but not settled in-house?
What will this matter mean for all parties?
Identify the Act/s (section or subsection) that were mentioned in this case.
For more information, refer to The Australian National Employment Standards.
In this instance, the employer and employee would share the same responsibilities.
The expectations each person would place on the other in their work relationship.
Which evidence was used by the court in this case to determine its outcome?
What were the recommendations made to solve this case?
These findings are your thoughts?
Do you agree with these findings?
Parties to the Case: Silver V. Tempest Cove Hospital
1: The case before Commissioner Lee was about unfair dismissal of Silver, an employee at Tempest Cove Hospital.
Unfair dismissal refers to the termination of an employee from employment in an unreasonable, unjust or harsh manner.
Fair Commission is responsible for deciding cases relating to unfair dismissal. James & Ombudsman (2015).
Fair Work Act 2009, sections 383, 384, and 394 contain specific provisions regarding unfair dismissal.
2: These are the stakeholders involved in this case:
The Tempest Cove Hospital Directors
Dr. Silver believed that she was wrongfully fired from her job at Tempest Cove Hospital in a harsh, unjust and unfair manner.
Dr. Silver believes that her employment terms were terminated in an unreasonable manner and she was not given a reason.
The Tempest Cove hospital members argued that her termination was due to misconduct (Stewart Bray & Oxenbridge 2014).
According to the Hospital members, her misconduct was the sole reason she was fired.
3: While there are many matters of unfair dismissal that can be resolved in the house, some are more complex and require the attention of key legal points.
This is the case of Dr. Silver’s unfair dismissal by Tempest cove Hospital.
The court found that the nature of this case is extremely complex. Therefore, it is impossible to resolve the issues in-house.
Because the case was complex, the court considered holding a hearing. This is according to Section 399 of Fair Work Commission 2008.
4: The decision of Fair Work Commission is binding on both parties.
In the event that the lawyers are agents, the parties can claim costs of legal proceedings. The application must be filed within 14 days from the date of the decision (Davis 2014).
The court’s decision must be followed by the parties. A district court, federal court, or both may impose a civil penalty.
The FWC gives parties the right to appeal against any decision made by the commission.
5: The Fair Commission Act is the basis of the case.
Section 391, 394, and 396 (1) were the Fair Commission Act’s statutory provisions.
The Fair Commission Act stipulated that the complainant must be dismissed in order to pursue a remedy.
Dr. Silver, the complainant, claimed that Tempest Cove hospital, Melbourne had unfairly dismissed her. She sought compensation.
A person can be fired if they have a dispute with their employer under section 396(1).
If the employee is forced to resign from his job by the employer’s conduct or course, then this would be a case of Section 396 (1).
6: Employers must ensure that employees work no more than the weekly maximum hours as per the Australian National Employment Standards.
Employers should also consider employees’ requests for flexible work hours.
Employers should allow employees to use parental leave entitlements and other benefits as required.
Employers should allow employees to take annual leave along with compassionate leave, long-service leave, community service leave, and personal carer leave.
Employers also have the obligation to provide notices of termination to employees along with the required redundancy pay.
Employers also have the obligation to give fair work information statements to employees.
In this instance, the employer should have made sure that the employees received the required notices, leaves, and pay (Wilson 2016,).
For any organization to grow, the relationship between the employer and employee is a fundamental requirement.
Employers expect employees to be loyal and give their best for the company’s success.
The employees also expect that the company will provide safety and health for them while at work and allow them to have a balanced work and personal life.
Employees also expect fairness, equity and just rewards for their efforts (Forsyth 2015).
7: The case was settled by the evidences. These documents included a letter dated 10 march from Swan to Silver, a 10 April letter from Silver to Swan and a 15 April letter from Swan to Silver.
Both were represented by two witnesses.
Dr. Silver said she was under work pressure because she had to work 70 hours a week.
8: Silver was a busy woman with many patients. Two of her doctors were absent.
She claimed that she worked 70 hours per week, which is unreasonable.
Silver’s claim was not reasonable when compared to Jack Swans. Swan claimed that while the general population might consider working 70 hours unreasonable, she actually worked 70 hours.
It is a known fact that doctors must work 70 hours per week and that most doctors agree that it is reasonable to work that long (Freyens & Gong 2017, 2017).
Silver could have argued about the impact on patients, rather than simply stating that she was under extreme stress and couldn’t resign.
Silver could have stated that she is unable to deal with a health issue and needed to be referred to another healthcare provider.
It would have been clear that she was forced to make a decision.
Silver was on medication because she was stressed and could not cope.
Silver was a practicing physician for 2 years, and she had to undergo 2 months of trials. She stated that she could not continue her practice, so she decided to quit.
According to the Commissioner, the work load is reasonable as she didn’t have many doctors and was already on medication.
Swan should resign.
Refer to the Reference List
Critical Analysis of “Genuine Redundancy” Cases Under the Fair Work Act 2009(Cth).
Journal of Industrial Relations, 57(3): 422-439.
Judicial decision-making under changing legal standards: Dismissal arbitration.
Journal of Economic Behavior & Organization., 133. 108-126.
(2015). Commonwealth of Australia.
“Promoting cooperative, productive workplace relationships”: Exploring the Fair Work Commission’s new role.
Employment law: A balance act: Employee disrepute management.
Official Publication of the Law Society of the Australian Capital Territory. (239), 38.