Academic journal article Labor Law Journal

Time to Curtail Summary Dismissal in Australia

Academic journal article Labor Law Journal

Time to Curtail Summary Dismissal in Australia

Article excerpt

It is assumed that the right to summarily dismiss an employee for certain forms of misconduct is a fundamental legal right reposed in employers. In this paper it is argued that the scope of this right in Australia is too expansive and should be significantly curtailed. In its current form, the right to summarily dismiss employees offends several widely accepted legal and normative maxims and is incompatible with several behavioural norms. While the focus in the paper is on Australian summary dismissal law, the doctrinal analysis and the reform suggestions advanced in this paper are of relevance to all market economy jurisdictions.

The first guiding premise in this paper is that "work matters" - even more than most people realise. Studies of human well-being show that employment, independent of its wealth-creating aspect, is important to well-being. Matters that are central to a person's well-being should not be taken away readily - "much should never turn on so little." This moral prescription is given legal recognition by the legal principle of proportionality, which prescribes that there should be proportion between the punishment and harm caused by the wrongdoing. Moreover, it is not the case that a single impertinent act is defining of a person's character or necessarily evinces a predisposition to behave in a like manner in the future. A "slip" is often simply that - an aberration and provides no reason to think it will be repeated. This is recognized in the context of most human relationships or transactions, even those involving far greater degrees of trust than the employer and employee relationship.

In the next part of the paper, I examine the interconnectedness between work and well-being. In part three, I argue that the summary dismissal principle in its current form violates the proportionality thesis. In part three, I provide an overview of the existing summary dismissal laws. I do not attempt to discuss the existing law in great detail. This paper is principally evaluative not descriptive in nature. In any event, this task would be tedious and unnecessary given the many texts dealing with this area of law.1 In part four, I provide a response to likely criticisms of my approach. Reform proposals are set out in the concluding remarks, where I suggest that an employer should only be permitted to summarily dismiss an employee where the employee engages in conduct which has a demonstrable non-transient impact on the efficiency of a workplace or the capacity of a staff member (including the wrongdoer) to perform his or her duties. The principles discussed in this paper are of relevance to forms of dismissal other than summary dismissal.2 However, the summary dismissal regime is the most extreme manner in which the employment relationship can be concluded and hence it is in this context that the issues are brought into the sharpest focus.

WORK MATTERS

Anecdotal link between work and well-being

People spend a considerable amount of their time at work and many view their job as a defining aspect of their personhood.

Humans realize themselves through activity, and though that activity need not be work, productive work activity represents one of the major ways in which we break the bonds of solipsistic subjectivity and are able to influence the world beyond us.3

In a similar vein, m Johnson (AP) v Unisys Ltd it was noted that:

A person's employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.4

These common sense observations that employment is central to human well-being are re-enforced by the results of recent studies into human well-being.

Scientific evidence of link between work and well-being

The uniformity of the human condition. In the past few decades there has been an explosion in the amount of studies conducted into human happiness and well-being (the terms are used interchangeably). …

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