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HRMG203 Human Resources Management- Fair Work Commission

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This assessment task is based on the scenario presented in a mock trial compiled by the Fair Work Commission of an unfair Dismissal case.

Follow the link below to the YouTube recording view the trial.

Write a report about this case. You report should address the following:

1. Outline the nature of this case.

2. Who were the stakeholders involved? What was their perception of the case?

3. Why was the matter brought before the court and not resolved in-house?

4. What are the implications for all stakeholders as a result of this matter being heard before a court?

5. Identify the Act/s, (section and subsection) that were raised in this case.

6. Refer to The Australian National Employment Standards to outline:

  • the responsibilities that the employer and the employee in this case would have to each other.
  • the expectations that each would have of the other in their workplace relationship.

7. What types of evidence were used by the court to decide this case?

8. What recommendations were made to resolve the case? Do you agree with these findings? Would you recommend anything else?


Parties to the case: Silver v. Tempest Cove Hospital

1: In the given case, the issue that was being heard before Commissioner Lee was relating to unfair dismissal of an employee named Silver working at the Tempest Cove Hospital. Unfair dismissal is said to take place when an employee is dismissed from their employment in an unjust, harsh and unreasonable manner. The Fair Commission decides cases relating to unfair dismissal of employees (James & Ombudsman, 2015). The Act that specifically deals with unfair dismissal of employees is the Fair Work Act, 2009 and sections 383, 384 and 394 specifically contain provisions relating to unfair dismissal of employees.

2: The stakeholders who were involved in this case are as follows:

  • Silver; and
  • The Directors of the Tempest Cove Hospital

Dr. Silver was of the opinion that she had been wrongfully dismissed from her employment in a harsh and an unjust manner from the Tempest Cove Hospital. According to the views of Dr. Silver her terms of employment was terminated in an unreasonable manner without providing her with proper explanation as to why the same was done. On the other hand, the contention, which the members of the Tempest Cove Hospital held, was misconduct being the ground of her termination (Stewart, Bray, & Oxenbridge, 2014). As per the opinion of the members of the Hospital, misconduct was the only reason that made them remove her from her employment.

3: There are various matters of unfair dismissal, which are easily solved in the house however a few matter are complex, and it is not possible to address the issues arising out of them in house, as key legal points have to be addressed. The present scenario is related to the unfair dismissal of Dr. Silver by Tempest cove hospital. As found by the court the nature of the case is very complex and it is not possible to address the issues in house thus the case is eligible to be tried in the court. The court also considered a hearing because it was satisfied that the case is complex and it could only be solved through a hearing according to Section 399 of the Fair Work Commission 2008.

4: Both parties in this case are legally bound by the decision of the Fair Work Commission. The parties have the right to claim cost of legal proceedings in case the lawyers are agents and the application has to be made within 14 days of from the date the application is decided (Davis, 2014). The parties must adhere to the decision made by the court or the district court or the federal court may impose a monitory civil penalty. The FWC also gives the parties a right to appeal against the decision of the commission.

5: The case is based on the legal provisions of the Fair Commission Act. The statutory provisions raised in the case were section 391, 394 and 396 (1) of the Fair Commission Act. Section 396 of the Act stated that in order to seek a remedy under the Fair Commission Act, it is necessary that the complainant must have been dismissed. The complainant, Dr. Silver alleged that the Board of Directors of the Tempest Cove Hospital, Melbourne unfairly dismissed her for which she claimed compensation. Section 396 (1) states that a person may be terminated if he or she engages in a quarrel with his or her employer. In this case, if the employee resigns from his employment but is forced to do so in the conduct or course of conduct engaged in by his or her employer.

6: According to the The Australian National Employment Standards the employers must ensure that the employees do not work more than the maximum prescribed weekly hours. The employers also need to consider the request of the employees towards flexible working hours. The employers should also permit the employees to take parental leave and entitlements as and when requires. The employers should grant the employees annual leave long with compassionate leave, long service leave, public holidays, personal carers leave and community service leave. The employers also have the duty to give the employees a notice of termination along with the prescribed redundancy pay. The employers also have the duty to provide the employees with a Fair Work Information Statement. Thus, in this case the employers should have ensured that provided the employees with the required leaves, notices and pay (Wilson, 2016).

The employee and employer relationship is the fundamental need for the development of any organization. The employers expect from the employees that they would be loyal towards the business operations and would provide their best effort for the betterment of the organization. On the other hand, the employees expect from the organization that it would ensure their health and safety while they are working and provide them with an opportunity to maintain a healthy work life balance. The employees also expect fairness and equity with respect to their work along with just rewards for the efforts put into the organization by them (Forsyth, 2015).

7: The evidences in which the case was decided were some agreed Documents including  – letter dated 10th march from Swan to Silver, a letter from silver to swan on 10th of April and a letter dated 15th April from swan to silver. Two witnesses for both were testified. Dr. Silver stated she had work pressure as she had to work for 70 hours.

8: Silver had many patients, and two of the doctors were away. She contended that she worked for 70 hours, which was unreasonable. Silvers contention was not reasonable compared to Jack Swans as Swan contended that although the general community might think working 70 hours is unreasonable. However, it is a well-known fact that doctors have to work for 70 hours and most of the doctors are of the opinion that they do not find it is unreasonable to work for that many hours (Freyens & Gong, 2017). Silver could have made contention on the impact of the patients instead of just stating that she was under immense stress and had no option but to resign. She could have said that there is some health issue, which she cannot deal with and had to refer to other healthcare providers. Then it would have been a clear-cut case that she had no other choice. Silver was under medication as she was prone to stress so she could not cope up. On the other hand, silver was practicing for 2 years and then she had to go through 2 months trials therefore, she said that she had no choice but to resign. The Commissioner stated that the workload is justified as she did not have much doctors and it is stressful as she was already under medication. Therefore, resignation of Swan is justified.

Reference list

Davis. (2014). A Critical Analysis of ‘Genuine Redundancy’Cases Under the Fair Work Act 2009 (Cth). 

Forsyth. (2015). Major court and tribunal decisions in Australia in 2014. Journal of Industrial Relations, , 57(3), 422-439.

Freyens, & Gong, &. (2017). Judicial decision making under changing legal standards: The case of dismissal arbitration. . Journal of Economic Behavior & Organization, , 133, 108-126.

James, N., & Ombudsman, &. (2015). Commonwealth of Australia. 

Stewart, Bray, Macneil, & Oxenbridge, &. (2014). 'Promoting cooperative and productive workplace relations': exploring the Fair Work Commission's new role. 

Wilson. (2016). Employment law: A balancing act: Effective management of workplace disrepute by employees. . Official Publication of the Law Society of the Australian Capital Territory, , (239), 38.

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