An unfair dismissal occurs when an employee is terminated in a manner that is harsh, unjust or unreasonable.

Dismissal occurs when an employer terminates an employees’ job, whether with or without warning due to conduct, performance, capacity, redundancy or forced resignation where the employee had no other option but to resign, due to the employer’s conduct.

The Fair Work Commission will consider factors such as whether there was a valid reason for dismissal relating to performance, conduct, capacity or redundancy and whether the employee was notified of this reason and given an opportunity to respond, whether a support person was unreasonably refused as well as other matters and practical considerations the Commission deems relevant. Also, if the dismissal was pertaining to unsatisfactory performance, the employee must be warned prior.

A dismissal is a case of genuine redundancy when the employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the business and the employer has complied with any obligation imposed by an applicable modern award or enterprise agreement to consult that employee about that redundancy prior with a chance to discuss this.

A dismissal is also not a case of genuine redundancy if it would have been reasonable in all of the circumstances to redeploy the person within the employer’s (or associated entity’s) enterprise.

Redeployment involves offering the employee another role within the business or an associated entity to avoid redundancy.

A small business is one with less than 15 employees. This involves counting all employees employed at the time of dismissal, including yourself and others being dismissed at that time, regular and systematic casual employees and employees of associated entities (including based overseas). This does not include contractors or volunteers.

The general protections laws protect your rights at work from adverse actions (i.e., being dismissed). This option is for employees who are dismissed for a prohibited reason which include:

• discrimination (age, gender, sexuality disability, religion etc);

• exercising workplace rights (such as taking sick leave or exercising WorkCover);

• freedom of association with unions;

• making a complaint about workplace conditions or safety; and

• sham contracting.

If your employer dismisses you for using or trying to use these rights as one of the reasons for your termination, this may be considered a general protections dismissal.

Some general protections that employees are protected from being fired from include:

• the right to correct pay, leave and other entitlements;

• the right to be in a union and take part in union activity (or not do so);

• the right to take time off work if you are sick or injured (i.e. temporary absence due to illness);

• the right not to be discriminated against (for e.g. sexuality, gender, race, age, disability status, religion, pregnancy status, political opinion, marital status, breastfeeding etc);

• the right to make a complaint or enquiry about workplace conditions;

• the right to the benefit of an industrial law or instrument;

• the right to disconnect

An unfair dismissal claim focuses on the unfairness and harshness behind the dismissal, while a general protections dismissal claim covers adverse actions (i.e., dismissal) taken for prohibited reasons like discrimination or exercising workplace rights.

A constructive dismissal occurs when an employee resigns because the employer’s conduct made continued employment untenable, effectively forcing them to leave.

A notice period is the amount of time worked after dismissal. Not all employees are entitled to notice, for example, casual employees may not be. However, as a general guide, your minimum notice period will be dictated by your length of employment, but may be increased depending on your award, enterprise agreement or contract.

• For 1 year or less, the minimum notice period is 1 week.

• For 1-3 years, that period is 2 weeks.

• For 3-5 years it extends to 3 weeks.

• For those that were employed for more than 5 years, the minimum period of notice is 4 weeks.

• You may also be entitled to an extra week’s notice if you are over 45 years of age with at least 2 years of continuous service.

Instead of giving you the required period of notice, this is where your employer simply pays you out that period instead of requiring you to work.

You must be an employee who was dismissed and completed the minimum employment period (6 months typically, 12 months for small businesses with less than 15 employees), while earning below the high-income threshold (unless covered by an Award or Enterprise Agreement).

You must be an employee who was dismissed (adverse action) for a prohibited reason (e.g. making a complaint, exercising workplace rights).

You must lodge an unfair dismissal claim or general protections dismissal claim within 21 days of the dismissal taking effect, with day one starting the day following termination. If the final day of the 21-day period falls on a weekend or on a public holiday, the timeframe will be extended until the next business day.

The 21-day period commences the day after your dismissal takes effect and includes weekends and public holidays. This time period may begin to a different day to the last day you worked.

If the final day of the 21-day period falls on a weekend or on a public holiday, the timeframe will be extended until the next business day. An extension of time for late applications outside this timeframe may be granted in exceptional circumstances (e.g. serious illness).

You must complete a minimum employment period of at least 6 months to be eligible to apply for an unfair dismissal claim. However, if you worked for a small business (with less than 15 employees), the minimum employment period increases to 12 months before being eligible for lodging an unfair dismissal claim.

There are no minimum employment periods for general protections dismissal claims.

No, both full-time and part-time employees are eligible for unfair dismissal claims if they meet the minimum employment period.

Yes, if they were engaged on a regular and consistent basis with a reasonable expectation of ongoing employment. The work does not need to be frequent or constant.

If a fixed-term contract reaches its end as agreed, an unfair dismissal claim usually isn’t possible. However, if the contract was terminated prior to this without a valid reason, you may be eligible for an unfair dismissal claim.

You must have been employed for at least 6 months (or 12 months if a small business) to make an unfair dismissal claim. However, you may still be eligible for a general protections’ dismissal claim if your dismissal involved a breach of the general protections.

Yes, if you were forced to resign because of the employer’s conduct that can be viewed as a constructive dismissal.

Employees working for national system employers (e.g. private businesses) are protected. These are individuals who work for a national system employer on an award or an enterprise agreement.

State Government employees, contractors, unpaid educational placement programs and unpaid volunteers are not covered.

The national system covers most private-sector employees as employers bound by the national workplace relations laws. State Government employees, contractors and volunteers are likely to be excluded, but it varies per State and Territory.

Yes, If you earn above the “high income threshold” which currently sits at $175,000 per year, and you are also not covered by an award or agreement you may not be eligible.

The high-income threshold is currently at $175,000 per year (as of July 2024), and is updated each year in July. This threshold operates as a limit to an employee’s eligibility to be protected from unfair dismissal. Employees earning above this amount may not be eligible for unfair dismissal protection unless covered by an award or enterprise agreement.

The Small Business Fair Dismissal Code is a set of guidelines for small businesses (fewer than 15 employees) to follow to ensure that dismissals are fair, given that smaller businesses may not have specialised staff or processes equipped to assist with ending employment.

Correct compliance with this code will likely mean the dismissal will not be considered unfair and is a jurisdictional objection available for employers.

The Form F2 is the original application form we submit on your behalf to initiate proceedings for unfair dismissal. The Form F3 is your former employer’s reply document in an unfair dismissal claim.

The Form F8 is the original application we submit on your behalf to initiate proceedings for general protections dismissal. The Form F8A is your former employer’s reply document in a general protections dismissal claim.

In some circumstances, a summary dismissal (or instant termination) can occur if an employee engages in serious misconduct, such as theft, fraud or violence. However, in most situations, an employer should follow due process, including warnings and an opportunity to respond.

An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the termination date. This written notice of termination must be clear and must specify the employee’s last day of employment.  

A warning, verbal or written, is a formal notice of underperformance, while a performance improvement plan outlines steps required for improvement.

You can make a claim for unfair dismissal if you completed the minimum employment period of 6 months (or 12 months for small businesses) regardless of whether you are on probation or not at that time. If you were dismissed within your probation period but after meeting the minimum employment period, you are still eligible for a claim for unfair dismissal.

Yes, as an apprentice you still maintain a claim for unfair dismissal if you worked the minimum employment period.

No, contractors are not considered employees, nor are unpaid volunteers, and therefore are both not eligible to make an unfair dismissal claim.

Yes, if the redundancy was not genuine (e.g. the job still exists, no consultation obligations followed, redeployment was possible).

Yes, dismissing an employee because of union membership is a breach of general protections.

Yes, but if you earn above the high-income threshold and not covered by an award or enterprise agreement, you will not be eligible to make an unfair dismissal claim.

Yes, if your dismissal was based on an unfair or biased investigation, a pre-determined outcome, lacked proper evidence or denied you an occasion to respond, you may have grounds for a claim.

If your employment was through a labour-hire agency, your claim may be against the agency rather than the host company. However, eligibility depends on the employment arrangement.

Yes, if your demotion resulted in a significant reduction in pay or responsibilities, it may be considered a dismissal.

Yes, dismissing an employee due to pregnancy or parental leave is a breach of general protections.

Yes, refusing unsafe work is a protected workplace right and dismissals due to a temporary absence for illness or injury may be a breach of the general protection laws.

Yes you can make a claim, it depends on whether the misconduct occurred and whether the dismissal was a proportionate response to that. If you were fired for serious misconduct, your unfair dismissal claim may depend on whether your alleged conduct met the threshold of being serious enough to warrant termination.

Serious misconduct involves conduct that is wilful or deliberate and inconsistent with the continuation of your employment contract and includes conduct such as theft, assault, fraud, sexual harassment, intoxication at work.

No. Employers must provide formal warning and give you a reasonable opportunity to improve before terminating your employment for performance-related reasons.

The Fair Work Commission has previously ruled that an employee who submits an unfair dismissal claim after being declared an undischarged bankrupt can continue with their case. However, if the claim was lodged before the person was a declared bankrupt, it is unlikely they will be able to proceed.

In most cases, an employee may be able to proceed with an unfair dismissal claim against a company in liquidation. However, if creditors have passed a resolution for the company's voluntary winding-up due to insolvency, the employee will need the Court’s permission to initiate or continue the claim.

You must take active steps to reduce your economic loss from the dismissal by searching and trying to obtain alternative employment. This process can begin with updating your resume and applying for jobs.

The Fair Work Commission schedules an informal conciliation conference to attempt resolution and settlement of your matter.

No, we will handle all communications with your former employer and the Commission on your behalf while you focus on moving forward.

Within a couple weeks after lodgement, you should receive notice of your conciliation meeting which is typically then set for 2-6 weeks after that date. At conciliation, approximately 80% of all matters lodged will settle. This means that the matter finishes here and nothing further is required.

However, if you do not settle at conciliation, the matter is referred on to a Commission Member for a determinative conference or arbitration hearing. Once this process begins, you’re generally with the Commission for 2-3 months. At the point of a final decision being issued and published online, the total time is could be around 26 weeks.

A voluntary conciliation conference with an impartial Conciliator will be set up by the Fair Work Commission to try and settle the dispute and avoid a formal hearing. This will occur online via a Microsoft Teams Meeting to which you will receive the link for a couple hours prior to the scheduled time. If you are facing technical difficulties you can also be dialled in to the meeting.

If the matter does not settle, your case will be referred on to a Commission Member for an arbitration hearing. A decision will made based on the evidence presented to the Commission Member. While methods for this can be chosen, it is common for the formal arbitration hearing to be held in-person.

In short, all conciliations and conferences (as well as directions hearings) occur online via Microsoft Teams. While arbitration hearings can be conducted online, they tend to be held in person.

The Form F3 is the employer’s formal documentation outlining their response to your claim, as their opportunity to explain their side of the story and raise any jurisdictional objections. While this should be provided well before the conciliation meeting, it is common for employers to delay lodgement of this document.

This is a voluntary online meeting between you and your employer, with each representative speaking on their behalf’s, led by an independent conciliator who facilitates discussion and negotiations between the parties. After introducing proceedings and providing background information on the process and the benefits of settling at a conciliation, we are invited to put forward our opening statement first, followed by the Employer’s representative doing the same. Following this, we enter private rooms where negotiations are conducted to reach a settlement.  This is essentially the informal platform where a conciliator assists with the parties negotiating a settlement.

As an impartial third party, the conciliator (not the same as a Commissioner) facilitates discussion between the parties to reach a settlement but does not make any binding decisions nor any comments on the strengths or weaknesses of any claim.

Yes, as the Applicant we need you in the conference to take your instructions and advice on offers to settle your matter. While we will present your case entirely on your behalf, your attendance is necessary but not necessarily your active participation if you do not wish to contribute anything further.

No, we will speak entirely on your behalf. You are able to discuss anything else you want to bring up that you felt is relevant with your consultant in the private session during the conciliation meeting.

A conciliation conference will only be adjourned in particular circumstances (such as pre-booked overseas travel or medical appointments) and are not accepted in all scenarios.

Yes, everything mentioned or said in the conciliation conference is confidential and without prejudice, meaning it cannot be brought up or relied upon at a later time.

Unfair dismissal conciliation meetings are scheduled for 90 minutes. However, the matter can settle earlier than this. General protections dismissal conferences usually go for 120 minutes.

Yes, you are able to bring a support person for emotional assistance during the conciliation conference. However, please inform us of this as soon as possible. Your consultant will be speaking entirely on your behalf.   

Not necessarily, as the conciliation conference is an informal and voluntary platform, so no evidence will be looked at or commented on and is therefore not required. However, useful evidence that can assist with your claim include any payslips, warning letters, performance reviews, screenshots, texts, emails, or anything else you deem relevant to ensure a clearer picture of events.

While it is in their best interests to attend the conciliation to participate in good faith to reach an agreement, the conciliation process is voluntary, and the matter will proceed onwards if the employer refuses to attend.

This is a claim made by the employer that the Fair Work Commission does not have the authority to hear your case due to certain eligibility issues like not meeting the minimum employment period, not being an employee, earning over the high-income threshold, lodging an application out of time etc.

A conciliation conference is an informal proceeding where both parties can reach any outcome, while a hearing is a formal process where a Commission Member makes a determination based on the evidence presented.

A directions hearing is the beginning of the formal process and is essentially a preliminary hearing to set timelines and procedures for evidence, witness statements and arbitration hearing dates. If your matter is close to settling and further negotiation would be helpful, the Commission Member may allow for a ‘Member-Assisted-Conciliation’ to proceed with the potential for the critical issues in dispute to be discussed as well as offers of settlement put forward.

An outline of submissions is a document that summarises the critical points surrounding your dismissal, why it was unfair and why you believe the Commission is able to deal with the application if there are any objections.

When your matter proceeds on the arbitration path, it becomes more formal. After a directions hearing, instructions are set out for when your evidence is due. This evidence includes an outline of submissions and any witness statements you intend to rely on.

A witness statement is a written statement made by a person who is giving evidence at an arbitration hearing, where these witnesses will be asked to confirm the truthfulness of their statement and be subject to cross examination on it. As the Applicant, you will at the very least file a witness statement yourself, and will essentially record your knowledge or observations about relevant issues or events.

When your matter proceeds on the arbitration path, it becomes more formal. After a directions hearing, instructions are set out for when your evidence is due. This evidence includes an outline of submissions and any witness statements you intend to rely on.

This is the final stage of the formal process if settlement has not been reached via the numerous other stages, and is where evidence is presented to a Commission Member for a binding decision to be made at a later date.

While the conciliation conference is voluntary, the claim will proceed without their participation of if they refuse, and the Fair Work Commission do not like employers who ignore their correspondence, potentially leading to a decision in your favour based on the evidence you present.

The outcomes Workplace Justice fight for include:

i. Securing strong financial compensation to cover your economic loss due to dismissal as well as any unpaid entitlements or bonuses. Alternatively, reinstatement back into your previous role with continuity of service.     

ii. Reversal of your dismissal to be officially recorded as a resignation to clear your name and reputation, allowing you to disclose to future employers that your previous employment ended on our own accord, enabling you to move forward. Alternatively, officially recorded as mutual separation or genuine redundancy.

iii. A statement of service confirming your title, duties, length of service and that your employment ended by resignation. We also assist in pursuing a positive reference letter to complement this.

iv. A letter of regret acknowledging the impact of the dismissal to assist with providing closure and understanding of the emotional aspect.

v.  A settlement agreement with terms of confidentiality, mutual release and non disparagement where neither party can say anything negative about each other pertaining to the dismissal.

Settling at conciliation leads to a much faster resolution (as opposed to waiting months and months), less stressful, avoids risk (not a public decision as opposed to a hearing), allows for money-in-your-pocket to assist with reducing your economic loss from the dismissal, opens up any possibility for settlement, there isn’t a winner and a loser, it remains confidential etc.

At it’s core, you have control over the outcome in a conciliation but you do not in a hearing.

Your matter will be handed onto a Member of the Commission, beginning the formal process and path toward an arbitration hearing with submissions of evidence and witness statements required prior.

There will still be plenty of opportunities for us to negotiate on your behalf with your former employer to reach a settlement. Most cases that don’t settle at a conciliation will typically settle within the couple weeks post conciliation, typically if final positions in the conciliation are close.  

In short, not likely at all. The overwhelming majority will settle at a conciliation conference, with the remainder settling soon after. It is only if your matter does not settle after a conciliation will your case be handed to a Commission Member which begins formal proceedings and path towards an arbitration hearing, with evidence required to be presented to a Commission Member.

Yes, reinstatement is possible if the Commission finds your dismissal to be unfair. This is also an option that can be proposed during the conciliation conference. However, this is rare and usually can only occur if the employment relationship hasn’t been irreparably damaged as it must also be agreed to by your former employer.

At a formal hearing, the Commission must first find the dismissal to be unfair. After this, remedies will be considered with the priority being reinstatement (getting your job back). If this is not possible, compensation (up to 26 weeks’ pay or $87,500 whichever is lower) may be awarded. On average, compensation at a hearing ranges from 5-7 weeks’ pay.

However, at a conciliation conference, the options for settlement are open to both parties to negotiate and agree to, so anything is theoretically possible.

Compensation is calculated using a formula known as the Sprigg formula, which considers factors such as lost wages due to unemployment, mitigation efforts (i.e., finding and securing alternative employment) and contingencies (i.e. reduction of compensation if dismissal was found to have been contributed by Applicant’s misconduct).

The lower amount of 26 weeks’ pay, or half of the high-income threshold, being $87,500 which is awarded in less than 0.4% of cases at an arbitration hearing.

In conciliations, anything is possible to be agreed upon, however the average compensation in unfair dismissal hearings sits around 5-7 weeks’ pay.

No, outside of very limited exceptions, most settlements will include a mutual release clause preventing you from making any further claims pertaining to your employment.

It is common to use your gross average weekly income for calculation purposes in the conciliation and this figure can be found on your payslips. However, as this is an informal setting, evidence is not required when putting forward or justifying this figure, but it is best to be as accurate as possible.

We can fight for any unpaid aspects as part of a settlement agreement in a conciliation conference, however, these are not typically part of calculations for calculation purposes in arbitration hearings, as for example, unpaid wages come under the jurisdiction of the Fair Work Ombudsman.

Put simply, it is very unlikely to be accepted by your former employer as it typically requires them to admit fault or guilt to some degree, which is generally a tough bargain, and can often come across as an insincere gesture rather than a genuine apology being provided.  

This is a legal document between the parties that finalises the settlement, often including terms of mutual confidentiality, mutual non-disparagement and mutual release clauses along with anything else agreed upon.

While the Conciliator can assist with providing standard Fair Work Commission terms, these are voluntary agreements between the parties and as such, all terms can be negotiated prior to settlement.

A ‘without prejudice’ offer made during settlement discussions cannot be used at a later stage.

As a common feature of a settlement agreement, this essentially means that both parties cannot say anything negative about each other, e.g. any disparaging remarks or damaging comments.

As a common feature of a settlement agreement, this essentially means that both parties release each other from any future claims relating to your employment, with some limited exceptions.

As a common feature of a settlement agreement, this essentially means that both parties will keep this information secret as the contents of the agreement cannot be disclosed publicly.  

Typically, settlement payments achieved in conciliation are subject to tax and put forward in gross terms as opposed to net amounts, and these are typically classified as “employment termination payments” (or ETPs) with certain exceptions applying.

This would be considered a breach of the Settlement Agreement, and failure to comply will result in legal action required to be taken to recover funds.

It is common for the settlement agreement to contain terms for payment to be made 7 or 14 days after both parties have signed and it can be common for minor delays to occur during this process but rest assured payment will be made by former employers as they are bound by the legal document signed.

A Form F50 or notice of discontinuance, is used when you want to stop an application or withdraw a claim and must be completed after a settlement is finalised to bring your matter and claim to a close. We will lodge a Form F50 on your behalf once everything has been finalised.

Yes, we pride ourselves in offering the most affordable budget friendly and transparent pricing to ensure justice for all employees.

Contact us for advice on protecting your rights and preparing for potential dismissal. Keep records of conversations, emails and payslips as it is common for employees to lose access to internal systems as soon as they are terminated.

A support person can assist the employee during meetings related to the dismissal and the only obligation on the employer is that they cannot unreasonably refuse their presence.

Yes, we can represent and assist you at any stage of the process. Please reach out as soon as possible so we can assist appropriately.

No, only one application can proceed between an unfair dismissal claim or a general protections dismissal claim for the same dismissal.

We are able to frame your claim with the critical issues in mind to increase your chances of success and garner the best possible outcomes.

Professional and expert representation ensures your case is presented effectively, highlighting key evidence and arguments in your favour as well as 24/7 assistance to guide you through the entire process while you focus on moving forward.

Yes, the earlier the better if that is what you intend to do.

You will need to submit a Form F50 to the Fair Work Commission to discontinue your claim.

The Fair Work Commission is Australia’s national workplace relations tribunal that handles unfair dismissal claims, general protections dismissals and other workplace disputes.

The Fair Work Ombudsman is the workplace relations regulator that monitors and investigates compliance with Australia’s workplace laws and is not involved with the unfair dismissal process.

We can assist immediately and at any stage of the process. Contact us as soon as possible to ensure your claim is lodged within the 21-day dismissal deadline. We aim to submit your application within 24 hours of your initial contact with us.

While we specialise in unfair dismissal and general protections dismissal claims we can also assist with direction in unfair deactivation, bullying and sexual harassment matters as well as wider workplace disputes.

Unfair deactivation protects gig economy workers from being unfairly removed from digital platforms without purpose. Workplace Justice can assist with these claims.