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Demystifying Unfair Dismissal in Australia: A Comprehensive Breakdown

Within the complex landscape of Australian employment law, unfair dismissal is a significant issue, one which necessitates thorough understanding. Central to this concept is the Fair Work Commission (FWC), the federal workplace relations tribunal in Australia, which oversees claims of unfair dismissal.

Before we delve into the criteria and processes, it’s essential to highlight that lodging a claim of unfair dismissal requires:

  • A minimum of six months employment with the employer, or twelve months if it’s a small business.
  • The claim must be filed within twenty-one days of the dismissal.
  • The employee must earn less than the high-income threshold (currently $167,500 as at July 2023) or be covered by a modern award.

Should a dispute arise, a preliminary step involves the employer and employee meeting to resolve the issue. If the initial meeting doesn’t lead to a resolution, arbitration facilitated by an FWC member follows.

Crucially, in the unfair dismissal process, the burden of proof lies with the employee (applicant). The onus is on them to demonstrate that the dismissal was indeed unfair, rather than presuming that the employer (respondent) was unjust.

Factors in Unfair Dismissal Cases

In evaluating whether a dismissal was unfair, the FWC focuses primarily on two factors:

  1. Existence of a valid reason for the termination.
  2. Determining if the termination was harsh, unjust, or unreasonable.

In specific situations, other elements may come into play. For example, for small businesses, compliance with the Small Business Dismissal Code becomes a relevant factor.

A ‘valid reason’ usually involves instances of poor performance, incapacity, policy breaches, or serious employee misconduct. The FWC reviews the employer’s rationale in the context of the dismissal and the evidence supporting these claims.

In assessing whether a dismissal was harsh, unjust, or unreasonable, the FWC evaluates:

  • ‘Harsh’: The severity of the termination relative to the alleged offence, taking into account the potential personal repercussions, such as economic and social effects.
  • ‘Unjust’: The validity of the alleged offence leading to the dismissal.
  • ‘Unreasonable’: The strength of the evidence presented by the employer to support the offence.

Additionally, certain surrounding circumstances will be evaluated, including:

  • Whether the employee received a warning about the issue.
  • Whether the employee was given an opportunity to rectify the issue.
  • Whether the employee was informed of the dismissal reason.
  • Depending on the business size, whether appropriate levels of management or expertise were engaged during the termination process.

The FWC also reserves the right to consider any other factors it deems appropriate.

Unfair Dismissal Outcomes

Based on the FWC’s decision, potential outcomes could include:

  • Reinstatement and compensation for lost wages.
  • Compensation capped at six months, based either on the employee’s actual wage or the annual high-income threshold, as applicable.

Understanding General Protections

General protections is another important concept in Australian employment law. Importantly, you do not need to be dismissed to lodge a general protections claim. This category encompasses areas such as discriminatory practices, failure to provide certain legal entitlements, and unfair treatment compared to other employees.

If you believe an employer has violated any of these protections, you can take immediate action against them in court. However, like with unfair dismissal, disputes regarding dismissal must first go through a conference at the FWC.

General protections are broad and cover a range of areas defined by the Fair Work Act 2009 (Cth). These protections safeguard employees from adverse actions by employers based on:

  • Discriminatory factors like race, sex, religion, age, and more.
  • Association with or participation in unions.
  • Valid absences from work due to reasons like illness, injury, or parental leave.
  • Complaints regarding their employment.

In these situations, the burden of proof first lies with the applicant to show that the adverse action was in response to a protected right. The onus then switches to the employer (respondent) to disprove this.

General Protection Action Outcomes

Similar to unfair dismissal cases, the court’s options in general protections cases include:

  • Uncapped compensation for economic loss.
  • Compensation for non-economic loss, such as humiliation or distress.
  • Pecuniary penalties as defined within the Fair Work Act 2009 (Cth).

Unfair Dismissal vs General Protections

While they might seem similar, unfair dismissal and general protections are separate and distinct concepts within employment law.

Unfair dismissal primarily protects employees against unreasonably severe or unjust dismissals by employers, while general protections safeguard fundamental employee rights.

Recognising under which category your situation falls is paramount. If you believe you’ve been unfairly dismissed or your general protections have been infringed upon, seeking guidance from Frontline Employment Defenders is crucial.

Call Frontline Employment Defenders Now so we can help you 1300 089 353 or visit

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