Broad Definition of Dismissal

Under the FW Act, an employee may only bring an unfair dismissal claim if he or she was dismissed as defined in s 386(1). According to this broad definition, a person has been dismissed if: His or her employment was terminated on the employers initiative (s 386(1)(a)), or The person resigned but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer (s 386(1)(b)). This definition of dismissed does not just apply to unfair dismissals, but throughout the FW Act, including in Pt 3-1, which set out certain general protections. Relevantly, the term dismissed appears in the FW Acts broader definitions provision (s 12), which refers to s 386 as the source of the definition. Although the general protections provisions refer to the situation where an employer dismisses an employee (s 342) and so uses the present tense, rather than past tense as used in the s 386 definition, this definition nonetheless applies. Section 18a of the federal Acts Interpretations Act 1901 clarifies where a word is given a particular meaning in a statute, other parts of speech and grammatical forms of that word have corresponding meanings. Termination on the employers initiative A termination on the employers initiative is a broad concept capturing both ordinary dismissals (where the employer has explicitly terminated the employment relationship) and dismissals where the employers intentions are less obvious (which, at first glance, may appear to be resignations or terminations by mutual consent, but are considered at law to be terminations by the employer). According to the Explanatory Memorandum to the Fair Work reforms, this category of dismissal is intended to capture the pre-Fair Work case law relating to the meaning of termination at the initiative of the employer, such as Mobazab v Dick Smith Electronics (1996) AILR 3-234. The concept also appears to capture forced resignations, but for the reasons set out below, these have been placed in a separate statutory category under s 386(1) (b). It is important to note that Mobazab has been the subject of varying interpretations, as explained in detail in Peary v Australian Hearing (2009) 61 AILR 101-016 (at paras [177] to [181]). An example of a short short formulation of the rest in Mobazab was that which was applied by the Full Bench of the AIRC in Tamayo v Alsco Linen Service Pty Ltd (1997) 43 AILR 3-684(103). In this case, the Full Bench observed that the correct question to be asked in light Mobazab was whether the act of the employer [resulted] directly or consequentially in the termination of the employment. However, this short formulation was subsequently rejected by the AIRC, including by the Full Bench in OMeara v Stanley Works Pty LTD (2006) 58 AILR 100-528. In this case, the Full Bench stated that: It is not simply a question of whether the act of the employer [resulted] directly or consequently in the termination of the employment. It observed that decisions (such as Tamayo) that adopt this shorter formulation should be treated with caution as they do not give full weight to the decision in Mobazab.
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