EMPLOYMENT LAW: AUSTRALIA

Introduction

Employment law developed in Australia mainly through the application of common law. The main consideration for courts of law was the principle of fair dealing between an employer and employee (Jarrett v. Commissioner of Police for NSW ). This was based on the doctrine of equity and fairness in employee relations. This, however, changed in ‘…movement from labour law to labour regulation.’ Currently, the Fair Work Act 2009 is the most authoritative piece of legislation in employee issues.

Contracting currently is an important aspect of employment in Australia. Issues regarding the status of the terms of the employment contract and whether employees have any say in the terms arise on a daily basis. The development of statutory law from early 1990 opened up the labour relations sector in Australia. Subsequent governments since 1990 have contributed immensely to the development of labour relations law. The relevant Act provides for interaction modes between employers and their employees, while various statutory bodies act as arbiters in disputes. Contractual agreements have made it easier for courts to intervene when there is a breach of contractual obligations.

The legal issues

Ms. Tania Witting, a teacher employed on a contract basis by a school, is deemed to have breached the school’s rules and regulations by her use of social media. All teachers at the school must sign employment contracts with express prohibitions on their behaviour while on the school compound. The facts of the case are that Ms. Witting posted on YouTube a video of her school band performing in boozy hotel venues. Parents complained about her suitability to teach their children. When the school advised her to remove the video, Ms. Witting declined. She therefore faced disciplinary actions, up to and including dismissal from the school.

The Fair Work Act 2009

Since the enactment of the law in 2009, Australia brought all labour, employment and industrial relations legislation under one single Act. This Act, combined with both Australian and Commonwealth common law and Australian High Court decisions, is used in the determination of employment disputes.

Many have argued that the terms under the Act on unfair dismissal are not any different from the previous ones. Ms. Witting may make such a claim of unfair dismissal. There has been a policy change in how such issues are handled. S. 384(1) demands that an employee must have worked with an employer for a specified period to seek relief from unfair dismissal. In this case, Ms. Witting had satisfied the 6-month period required under the Act; thus, she may be entitled to claim damages.

The school may, however, cite the same law with respect to her dismissal because she refused to take down the video. Courts may regard this as a constructive dismissal since the employee violated school regulations and because she refused to take down the video when advised to do so.

Case analysis

Courts routinely apply common law in statutory matters of labour. The courts have held that under common law, the position is one of trust as enunciated by Lord Reid in Malloch v Aberdeen Corporation at page 1581: “At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant’s only remedy is damages for breach of contract.”

In Michael Steven Delaware Edwards v. Chesterfield Royal Hospital NHS Fund Trust the court of appeal held that the claimant could have been dismissed on a mere appropriate notice without having to malign his name.

The facts of this case were that Mr. Edwards, who had been appointed as a surgeon at Chesterfield Royal Hospital in 1998, was dismissed on disciplinary grounds. His employment contract stated that he could be dismissed with 3-month’s notice if his conduct violated procedural regulations of the hospital. Such a finding was made against him, which led to a summary dismissal, which meant he could not be employed elsewhere. Nicole J. set aside the decision by District Judge Jones, based on Gunton v Richmond-upon-Thames London Borough Council, and allowed Mr. Edwards’ appeal. He appealed his case to remove the limit on his damages that resulted from summary dismissal. The court of appeal set aside the earlier decision allowed the appeal on the claims made by the claimant.

Legal questions

Can the school insist that she take down the video?
Every corporation needs employees to exhibit loyalty, have a sense of corporate duty, and act with fairness to the corporation. In the case under discussion, the corporation was the school which employed Ms. Witting. The US case of Caremark is the key precedent in this field. The court held that the directors of an organization need to install measures and reporting mechanisms to ensure compliance with company rules and regulations.

In the AWA case an Australian appeals court issued a decision defining the CLERP rules, in which managers have a cardinal duty to monitor all of the company performance, the corporate image. and employee compliance to its rules. In the AWA case, both the trial court and appellate courts held that a manager “…must take necessary steps to place themselves in a position to guide and monitor the management of the company”. Clarke and Sheller of the Court of Appeal agreed with Rogers CJ of the trial court when they said the duty of a director “will vary according to the size and business of a particular company and the skills or experience that the director held himself or herself out to have in support of appointment to the office.” They also state there is a minimum standard of care directors in all enterprises must meet. In their decision, they cited the U.S. case of Francis in which the court listed the required duties of directors of a company. Based on these previous rulings, the court should rule that the school has a requirement to uphold the image of the school and the regulations the school has in place. Thus, the school can insist that Ms. Witting remove the video from the website.

Can the school direct her not to perform in the band?
The regulations which formed the basis of employment at the school were very clear and required Ms. Witting to not take actions that would compromise the image of the school or its students. By posting a video that showed the students of the school in an inappropriate setting, Ms. Witting did not comply with those rules and regulations. Because the school demanded that all teachers comply with these rules, any non-adherence could thus lead to termination of employment. Ms. Witting’s non-compliance to school rules would thus involve invoking the contract terms which insisted that she follow the rules as set by the school. She cannot therefore sue the school claiming constructive dismissal. The employer provided all conditions necessary for her to work by delineating well-defined rules. Even after the violation, she had the opportunity to redeem herself by taking down the video.

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