Unfair dismissal; the concept of repudiation

There concept of a “dismissal” is obviously a profound aspect of workplace relations laws in Australia. Self-evidently, it is at the very core of unfair dismissal cases.

It is also very important in the application of the general protections provided for by the Fair Work Act because the dismissal of an employee obviously constitutes adverse action, which is unlawful if one of the reasons for it is a prohibited reason.

However the concept of a dismissal is misleadingly simple because it includes both the common law doctrine of repudiation together with the ordinarily understood situation of an employer terminating the employment of an employee against his or her will.

The expression “dismisses the employee” includes the repudiation by the employer of the employment contract, whether or not the employee accepts the repudiation.( Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [29]))

PACHECO-HERNANDEZ v DUTY FREE STORES GOLD COAST PTY LTD [2018] FCCA 3734 delivered 17 December 2018 per Manousaridis J