Operations and competitive strategy
In the current environment, common law is playing an important role in each aspect of the human being’s life. Common law is made on the basis that courts and past judgments. It is also known as the case law and judicial precedent. The common is formed by the courts, judges and similar tribunals. In the same concern of this, the current business environment is also affected by the concept of the common law (Weiss, 2014). The knowledge of the common law helps the both employee and employer to remain safe from the various issues. It secures the people to minimise the loss due to uncertainty. In a similar manner, this report discusses that what grounds an employer may justify the dismissal of an employee. This report also advises to Jane as to her position and any remedies available to her. This report is important to Develop and understanding of the Legal System and the basic principles of the common Law. It also develops an understanding of all areas of law that affect business organisations. At the same time, it also develops critical skills and ability within the legal context and applies that knowledge to the business context.
According to the given information, Jane is working in Fly High Airline for 10 years as an air stewardess. But suddenly, her employer dismissed Jane without following the procedures set out in her contract. As taking this decision, the reason is that the numerous missed days of work in the last few months and Jane is not up to date from the health and safety training required by the airline. However, this decision of the termination is not looking good from the side of the employer. The termination of an employee always remains critically decision and process. It is because, in the termination, there is a risk of legal action and wrongful termination and contractual breach. According to the Commonwealth Fair Work Act 2009 (FW Act), it is the responsibility of the employer to consider whether termination is under employment law or not and whether the ground of termination is valid or not (Stewart, 2013). In the common law, there is a clear guideline that suggests some guidance on the issue of employer and employee.
Termination of the employment under employment law in Australia depicts that when an offer of dismissal of an employee is issued, then the employer should list at least some grounds for termination. In the lack of grounds for termination, the employee can sue the employer. Due to this, employer and company can face a legal issue in the business operation (Bentley MacLeod and Parent, 2014). In this legal action, the employer has to provide the justified ground of dismissal of an employee. But, employer can issue an latter of dismissal of an employee in the below situation,
Case 1: The employer can terminate an employee according to the common law, if employee breaches the term and condition under the employment contract (Freedland, et al., 2016). It is enough to dismiss an employee in the organisation. The termination of the employee depends on the term and condition. In this situation, employee takes legal action against the employer for wrongful termination then employer is free to provide new reason to justify the termination. In the case law Brownson v. Honda of Canada Mfg, 2013, Brownson was terminated due to it was unable to meet the terms and condition of the employment contract. In this case, it was found that Brownson breached the term and condition under the employment contract.
Case 2: In the employment law, the employer can also terminates an employee according the term of employment contract. But termination of employees depends on the some unethical act by an employee. In the common law, the employer has some right regarding the termination of an employee. At the same time, the employee also has rights to take the legal action against the employer in the wrongful termination (Kiazad, et al. 2014). But, in this situation employee cannot give new grounds of termination. In this, employer argues that the given ground is valid and the employee is not right in their situation. For example, an employer can dismiss its employee under a provision that allow for termination upon non attendance. In this situation, employer remains safe from the legal action and it also remains sure that termination is under the common law (Conway, et al. 2014). The case law of Hughes v Narrabri Bowling Club Ltd  , it was identified that employee was doing unethical practices that company did not allow at the workplace. However, Hughes was warned by manager earlier but there was not improvement is Hughes. Due to this, company had to terminate to Hughes.
Case 3: According to Termination of the employment under employment law in Australia, the employer can dismiss an employee under the terms of employment contract. In this, employee can challenge the decision of the employer where employer was able to rely on that contractual term. In this case, employer is able to provide the new grounds but it should relate to employment contract. It is because common law does not allow the employer to change legal ground that it provides for termination of employee (Vander Elst et al. 2016). For example, an employer can dismiss an employee under a term that provides termination upon the serious misconduct without giving actual reason behind this. But employer has to provide a reasonable ground for termination of employee. In the case law of Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners , court given decision in the favor of employees because employer was not able to prove right reason was genuine. At the same time, court did not allow the employer to change legal ground that it provides for termination of employee.
According to Fair Work Act 2009, the valid ground for termination depicts that employee can take legal action against the company and employer in the situation of wrongful termination. Defendant faces the legal issue due to unjustified termination of the employee. In this case, court provides equal chance to the employer and employee to prove their justification. If the defendant was terminated the employee under the terms of employment contract then result goes in the favor of employees. However, the court first evaluates that whether the termination is under the employment contract. After this, court identifies that whether employee is in breach of its employment contract duties (Epitropaki, 2013). In the case of Ramos v Good Samaritan Industries , the termination of the employee was complex so it was difficult for the court to take the decision. In this case, court took six months to evaluate that where Ramos did breach the employment contract or not.
At the same time, it is also found that an employee can also terminate an employee when employee does not meet with their duties. It is also known as the incompetence of the employee regarding its duties. It represents the lack of the capacity of employee to meet the requirement of the duties.
In Australia’s Fair Work Act, there are some certain grounds an employer may justify the dismissal of an employee. But in this, it is essential that contract between the employee and employer much be lawful. If the management of a company identifies that there is a need to dismiss an employee in the organisation then it is important that company flow the procedure of the termination (Wang and Hsieh, 2014). It is also essential for the companies that are operating at the big level to keep legal adviser on the employment contract. The case law, Shea v Energy Australia Services Pty Ltd, (2014) is about the unfair termination of employee. In this case, court was found that reason of termination of Shea was not genuine.
The provided information depicts that Jane is terminated by its employer without following the procedures set out in her contract. In this case, Jane has a right to take the legal action against the company or employer. In the common law, there is also certain procedure to terminate an employee. The law of the employment said that an employer cannot terminate an employee without following the procedures set out in its contract (Bankins, 2015). However, freelances do not come in the protection of the employment contract. In the business environment, it is essential for all employers to follow rules and regulation that come under the employment law. Along with this, it is also essential for the employers to mention the rules and procedure in the employment contract. In the organisation, the employment contract ensures the employees and employer that are safe in this legal contract.
The termination of the employment under employment law in Australia states that business environment makes liable to the employer to follow the rules and regulation they are mentioned in the employment contract. The common law also said that all essential procedure and principles shows follow in the organisation (Clinton and Guest, 2014). The employment law under the common law states that if the relationship of employee and employer, there is employment contract and employer do not follow this them employee has right to bring legal action in the court. In the same concern of this, in the case Jane and Fly High Airline, there was employment contract. But, at the same time, it is found that employer did not follow the procedure at the making the decision of termination of Jane. Hence, it is recommended to Jane, it should take legal action against its employer because employment contract under common law allows the employees to bring legal action in the court if employer does not follow the term of the contract (Rayton and Yalabik, 2014).
In additionally, it is also identifies that employer and employee have employment contract but is not followed by the employer. Furthermore, employer is terminated without procedure in the contact. In this situation, employee can bring claim against the employer as breach of contract in the high court and nation court. In the similar manner, employee can Jane should also fire a case against Fly High Airline in the high court and national court. In the employment contract under the common law, if employee is terminated by the company then employee is right to get salary that becomes in the notice period (Hughes, et al. 2015). According to this, Jane has to right get the remaining salary by the company. For this, Jane should demand in the court. In the business scenario, unfair dismissal is known as the employment tribunal.
At the same time, it is also found that in the study of Australia’s Fair Work Act that an employee cannot claim for unfair dismissal in the situation when it does not complete one year in the organisation. But, in the case of Jane and Fly High Airline, it is found that Jane is working in the organisation since last ten years so that it should claim in the court for unfair dismissal. At the same time, it is also suggested to Jane, it should claim as breach of contract according to the situation appear above (Kruppe, et al. 2013).
In the case of Jane and Fly High Airline, it also found that Jane was continuously on leaves, it is because from last few months it was going from the stressful time. Jane had to take leaves due to illness of its mother. It also had to take leaves due to separation of its husband. After this, Jane took leave due its pregnancy. However, in all situations Jane was appropriate reason of leaves. During this situation, Jane missed various important training sessions on CPR and passenger safety. In the airline service, the knowledge of CPR and passenger safety is very important.
Along with this, it is also found that the reasons of termination of Jane were the numerous missed days of work in the last few months and Jane does not have the up-to-date health and safety training required by the airline. In this case, it is also possible that employer was right at its situation. But, one think is clear that procedure of termination was unfair. Hence, the termination of the Jane was not unfair termination (Shields, et al. 2015). It is because, unfair termination occurs when a company dismisses an employee without any proper reason. But, in Jane case reason is proper so that it is not unfair dismissal.
In the context of breach of employment contract, Jane should take the legal action against the employer. But, before taking the legal action against the employer, it is essential for the Jan to have proper knowledge of the employment contract. At the same time, Jane should also think that what it is going to do and what is its cost and way. Along with this, it should also think that result that may occur when it will prove wrong its situation.
From the above discussion, it can be concluded that the knowledge of the employment contract and Fair Work Act is essential for the both employee and employer. It helps the both to remain safe in the breach of the employment contract. It makes liable to both parties to complete their liabilities or duties. At the same time, it is also found that if one party breach the employment contract then another party can take legal action against first party. It can also be concluded that according to the common law, it is essential for an employer to follow the procedure of termination and provide the faire reason of termination.
Bankins, S. 2015, A process perspective on psychological contract change: Making sense of, and repairing, psychological contract breach and violation through employee coping actions, Journal of Organizational Behavior, 36(8), pp.1071-1095.
Bentley MacLeod, W. and Parent, D. 2014, Transaction costs and the employment contract in the US Economy, The Journal of Law, Economics, and Organization, 31, pp.i40-i76.
Clinton, M.E. and Guest, D.E. 2014, Psychological contract breach and voluntary turnover: Testing a multiple mediation models, Journal of Occupational and Organizational Psychology, 87(1), pp.200-207.
Conway, N., Kiefer, T., Hartley, J. and Briner, R.B. 2014, Doing more with less? Employee reactions to psychological contract breach via target similarity or spillover during public sector organizational change, British Journal of Management, 25(4), pp.737-754.
Epitropaki, O. 2013, A multi‐level investigation of psychological contract breach and organizational identification through the lens of perceived organizational membership: Testing a moderated–mediated model, Journal of Organizational Behavior, 34(1), pp.65-86.
Freedland, M., Bogg, A., Cabrelli, D., Collins, H., Countouris, N., Davies, A.C.L., Deakin, S. and Prassl, J. eds. 2016, The contract of employment, UK: Oxford University Press.
Hughes, W., Champion, R. and Murdoch, J. 2015, Construction contracts: law and management, UK: Routledge.
Kiazad, K., Seibert, S.E. and Kraimer, M.L. 2014, Psychological contract breach and employee innovation: A conservation of resources perspective, Journal of Occupational and Organizational Psychology, 87(3), pp.535-556.
Kruppe, T., Rogowski, R. and Schömann, K., 2013, Labour market efficiency in the European Union: Employment protection and fixed term contracts, UK: Routledge.
Rayton, B.A. and Yalabik, Z.Y. 2014, Work engagement, psychological contract breach and job satisfaction, The International Journal of Human Resource Management, 25(17), pp.2382-2400.
Shields, J., Brown, M., Kaine, S., Dolle-Samuel, C., North-Samardzic, A., McLean, P., Johns, R., O’Leary, P., Robinson, J. and Plimmer, G. 2015, Managing Employee Performance & Reward: Concepts, Practices, Strategies, UK: Cambridge University Press.
Stewart, A. 2013, Stewart’s guide to employment law, Sydney: Federation Press.
Vander Elst, T., De Cuyper, N., Baillien, E., Niesen, W. and De Witte, H. 2016, Perceived control and psychological contract breach as explanations of the relationships between job insecurity, job strain and coping reactions: towards a theoretical integration, Stress and Health, 32(2), pp.100-116.
Wang, Y.D. and Hsieh, H.H. 2014, Employees’ reactions to psychological contract breach: A moderated mediation analysis, Journal of Vocational Behavior, 85(1), pp.57-66.
Weiss, M. 2014, Book Review: Rethinking Workplace Regulation: Beyond the Standard Contract of Employment.