Doubt thrown on unfair dismissal amendment

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Doubt thrown on unfair dismissal amendment

The practical effect of a recent amendment to the federal unfair dismissal laws, whereby the Court is now required to consider "all the circumstances of the case" when deciding whether to grant reinstatement, has been put in doubt.

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The practical effect of a recent amendment to the federal unfair dismissal laws, whereby the Court is now required to consider "all the circumstances of the case" when deciding whether to grant reinstatement, has been put in doubt.

It was thought that the amendment, which commenced on 15 January 1996, would provide more balance for employers by widening the Industrial Relations Court of Australia’s discretion when determining whether to grant reinstatement. However, Madgwick J has cast doubts over the practical significance of this amendment:

"It is doubtful how much difference the amendments made by the Amending Act have made. However, it was held time and time again in this Court that reinstatement was the primary remedy and that impracticability was the only reason it should not be granted. But it had also been held that an industrially commonsense view of practicability should be applied, and one can only judge practicability in all the circumstances. I do not doubt that there is some theoretically greater element of discretion for the Court now than before, but the precise area over which that discretion has been widened may nevertheless be narrower than has perhaps been thought in some quarters."

It should be noted that Madgwick J’s comments are what is referred to as "obiter dicta" (ie comments not relevant to the central issues in the case), and are therefore not binding on other members of the Court. But if these comments do represent the correct legal position, then they only serve to add greater impetus to the need to significantly rewrite the federal unfair dismissal laws.

 

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