Terminating the contract of an employee needs extensive legal knowledge and understanding on the part of the employer. Dismissing an employment relationship leaves a great impact on both the worker and the business. The process also requires many resources, especially in terms of energy and time. It is, therefore, important to be aware of the legal processes involved in employee dismissal.
The Fair Work Act 2009 contains laws that cushion employees in the Australian job market against unfair dismissal. These laws cover workers who earn a maximum of $ 123, 300 excluding bonuses. They also cover employees who previously enjoyed the cover of the enterprise and awards contracts that the FW Act or previous statutes established.
Dismissal laws propose that employees should seek legal intervention when their employers dismiss them without reasons related to their behavior, ability, or redundancy. Besides, if their employers do not give them notices of their dismissal, do not allow them ample time to respond, did not give them warnings for being in certain situations, and do not allow specialists to help them in their hearings, they should look for legal assistance. They should also get legal intervention in cases where their employers do not follow proper dismissal procedures when dismissing them (Australian government).
If the employer accuses the employee of misconduct or incompetence during dismissal, he should cite more than one occasion of incompetence or misconduct. The employer must determine the misconduct using the “balance of Probabilities.” This balance usually involves intensive investigation of the situation. Therefore, they must seek, consider and test all the available evidence.
The common law uses the principle of reasonable notice in determining the length of notices. Usually, this period is between one month to two years. However, other factors such as position, alternate job, age, and years of service can also help in establishing the length of this period.
Implied Terms in Employment Contracts
Implied terms are provisions that are enforceable through contracts, and the parties in employment contracts take them as part of their employment agreement. Implying such terms entails using the common law, customs, facts, and implied statutes. Implied terms are useful even when they are not in text form.
CIRCUMSTANCES WHEN TERMS ARE IMPLIED. Individuals can imply terms into employment contracts depending on the custom of the field of operation. If there is an existing custom that shows the necessity of implying a term, then the law will consider the term factual. Such a custom should have enough evidence to show that people know it well and always import it into their contracts. In Thornley v Tilley, the court said, “The custom must be so notorious that everybody in the trade enters into a contract with that usage as an implied term.” If customs are not consistent with the nature of the contract, the parties usually exclude them (Van der Waarden 22).
Parties can also imply terms by applying existing or new statutes. For example, all consumer contracts used to import terms from the Australian Consumer Law some years ago. Currently, this law does not imply its terms into contracts but gives legal guarantees that look like the terms that parties used to import into their contracts.
According to the common law, parties can imply terms depending on their intentions. Such intentions can be presumed or actual. The parties can only imply the terms in this manner if they can make the business relevant to the contract. They should also be so obvious that no one can oppose them. In addition, they must be able to communicate clearly, and should not contradict the expressive terms.
Sources of Law that Regulate the Employment Relationship in Australia
Several sources of law govern the employment relationship in Australia. These sources are common law, equity, precedence, and legislation. The common law makes up most of these laws, but the statutes are increasingly supplementing it to ensure the absolute protection of consumers.
The common law contains laws that judges and tribunals develop through rulings. Judges keep such court rulings for future reference by judges who may encounter similar cases. This definition, therefore, implies that every case in a court of law sets precedence for other cases to follow in the future. Employees and employers who find themselves in certain difficult situations may refer to previous court decisions to solve their problems. The terms of the original contract are also very crucial in helping the judge come up with fair judgments.
The Fair Work Australia Act 2009 is the commonest legislation that regulates the employment relationship. This law applies to all bosses and employees in non-governmental organizations in all parts of Australia, except Western Australia, where it only applies to trading and financial corporations. The Fair Work Commission has the duty of implementing the Fair Work Act (Australian government).
Modern Awards are responsible for regulating the terms and working conditions for specific employees. They handle ten entitlements, which include the minimum range of pay and overtime. Each modern award should allow for negotiations between bosses and their employees. This legislation does not cover employees whose salary is above $ 123, 000.
These sources of law are very critical in guiding and regulating the relationship between employers and their employees to eliminate misunderstandings.
Restrictive Covenants in Employment Contracts
Restrictive covenants contain clauses that restrict employees from doing certain activities after their termination. Such restrictions prevent former employees from using the knowledge and skills they gained from their previous employments in their new jobs. The court considers such restrictions as restraints of trade, and, therefore, improper.
The law does not guarantee employers protection against ex-employees unless the employer provides enough evidence to the court to show that the clauses in question are for protecting their business interests. In such circumstances, the clause should not go beyond the reasonable extent of protecting the interests (Van der Waarden 22).
The Competition and Consumer Act 2010, has restricted the enforcement of the restrictive trade principle. This law covers most of the issues that the doctrine would have considered. Restriction of trade, however, still applies in some circumstances, where it does not contradict the Act (Gray 338).
Restriction of trade is enforceable when it is reasonable and genuinely concerned with the interests of the employer, employee, and the public. The term “reasonable” refers to the existence of legitimate interest or the need for protection. In addition, the restraint should not go beyond protecting these interests. In case the restraint does more than what is necessary, the court will consider it as not reasonable. Legitimate interests involve protecting the goodwill and sensitive details of the business.
Creating and maintaining a uniform sporting environment is also a legitimate interest as held in Adamson v New South Wales Rugby League Ltd. The law considers ordinary protection of the interests of the business as not reasonable (Gray 340).
Works Cited
Australian government. Fair Work Act 2009. Sydney: Australian government, 2009. Print.
Gray, Anthony. ‘Advertising By Professions And The Competition And Consumer Act 2010 (Cth)’. Australian Business Law Review 40.5 (2012): 336–347. Print.
Van der Waarden, Natalie. Understanding Employment Law. 1st ed. Print.