Question

Sally worked for Shine On Pty Ltd (“Shine On”), a cosmetic company in Brisbane, as a high

level cosmetic consultant, which required her to spend a significant amount of time driving to

different store locations. She informed Bert, the Human Resources Manager, that she was

pregnant and asked to move to a similar level role in the marketing division of the Brisbane

office, since she had found it increasingly difficult to drive long distances as her pregnancy

progressed.

Sally was demoted to an administrative role in the product labelling division of the company.

This involved a substantial reduction in her duties and a $20,000 pay cut. Sally was not

happy with this arrangement and resigned from her job. Sally has commenced an action

4

against Shine On for unfair dismissal. Shine On has argued that it did not dismiss Sally, but

that she chose to resign from the company.

Advise Sally as to whether she would have a claim for unfair dismissal under the Fair

Work Act 2009 (Cth) (FWA) and the supporting common law. When discussing section

387 Fair Work Act, students should limit their discussion to only FOUR of the factors from

section 387. What remedies (if any) are available to Sally and the Fair Work Commission

under the FWA?

Answer 1

  

' Sally was demoted to an administrative role in the product labeling division of the company. This involved a substantial reduction in her duties and a $20,000 pay cut. Sally was not happy with this arrangement and resigned from her job. Sally has commenced an action against Shine On for unfair dismissal . '  

The above part shows that Shine took decision without discussing it with sally and without taking her into confidence. Without giving explanations on Sally's objections , Shine argued only on one logic  that - ' it did not dismissed sally , but she chose to resign from the company . ' This clearly shows that company is showed itself as innocent but company did not justified what steps were taken to solve the problem .    Generally companies never demand resignation or dismiss to employees because this may legally put companies into big trouble . so to keep themselves legally safe companies creates such situations that it becomes hard for employees to work and desperately employees themselves give resignation .

Before talking on remedies , we see All terms under section 387 WFA   -

FAIR WORK ACT 2009 - SECT 387

Criteria for considering harshness etc.

                   In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

                     (a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

                     (b) whether the person was notified of that reason; and

                     (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

                     (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

                     (e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

                      (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (h) any other matters that the FWC considers relevant.

  

source - http://www6.austlii.edu.au/

---------------------------------------------------------------------------------------------------------------------------------------------------

   All the above terms are technically not applicable in this case because all the conditions are about dismissal & this case is not about dismissal . The other Laws related to rights of employees only can help Sally because this case is clearly not about dismissal . It is purely about the welfare & rights of employee . so Fair Work Commission   under FWA can proceed it's work in the direction of Laws related to rights of employee .