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  • Print publication year: 2017
  • Online publication date: August 2018

Chapter 6 - The end of the employment relationship

Summary

For many of us, none of these statements is unfamiliar:

I love my job.’

I loathe my job

‘You can't do that, it's my job!’

Yet, as Professor Hugh Collins notes, in Justice in Dismissal, the legal reality is that there is no proprietary interest in a job. We cannot necessarily hold onto a job until a time of our choosing; nor can we pass a job on to whomever we please when we decide it is time to leave. One of the harsh realities of life is that people can and do lose their jobs for all manner of reasons – and sometimes against their wishes.

That said, Collins also underscores the importance of employment – jobs so often define people's identity – and strong rates of employment add to the economic and social prosperity of the community. It is neither a good thing nor a legally allowable thing for employers to simply terminate an employee's employment on a whim. Indeed, under International Labour Organization (ILO) conventions such as the Convention on Termination of Employment, the notion of preventing unfair dismissal is enshrined. And it must be remembered that employment is governed by a contract of employment (discussed in Chapters 1 and 2 of this book), so the idea of suing for breach of contract may be entertained.

Australian law governs the circumstances in which employment terminates. It endeavours to provide checks and balances between fairness to employees and economic flexibility for business, and to govern the numerous issues that can arise.

The Fair Work Act 2009 (Cth) provides remedies for unfair dismissal and is available to many Australian employees whose dismissal was ‘harsh, unjust or unreasonable’. The remedy is not available for job loss caused by genuine redundancy, nor to those whose employment terminates at the end of a genuine fixed-term contract or who are on qualifying periods. (It does, however, apply to some demotions and constructive dismissals – and there is a Small Business Fair Dismissal Code for those working in small business.) Reasons for dismissals governed by this legislation are many and varied, ranging from alleged poor workplace performance through to after-hours misconduct for misuse of social media. This jurisdiction embeds roles for unions as advocates and promotes conciliation, but lawyers may appear by leave and full trials can occur.

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