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Unfair Dismissal in Australia: An In-Depth Guide to Navigate its Complex Landscape

Navigating through the intricacies of Unfair Dismissal in Australia can often seem like a daunting task. Thanks to the Fair Work Act, the country’s chief legislation that oversees federal industrial relations, Australia has a strong framework that strives to ensure a safe and secure working environment for its workforce. But how exactly does this legislation work, particularly in instances of alleged unfair dismissal? This blog post delves into the complexities of Unfair Dismissal in Australia, serving as your essential guide to understanding your rights and responsibilities under the Act.

The Fair Work Commission and Unfair Dismissal

Australia’s federal workplace relations body, the Fair Work Commission (FWC), is the primary institution handling workplace disputes, including unfair dismissal applications. These applications are designed to offer recourse for employees if they’ve been unfairly treated, and foster an efficient, flexible, and informal mechanism for resolving such claims.

Understanding Eligibility

Before initiating an unfair dismissal claim, it’s vital to understand who qualifies. The individual must be an ’employee’ of the concerned employer, which requires a formal contract of employment. Interestingly, even those categorised as independent contractors could potentially qualify as ’employees’ in specific circumstances, enabling the FWC to consider their claim. However, those in voluntary positions or vocational placements are typically ineligible, as they are not classed as ’employees.’

Unfair Dismissal Protection Under the Act

Protection from unfair dismissal involves several criteria:

  • Dismissal from employment
  • Dismissal viewed as ‘harsh, unjust, or unreasonable’
  • Dismissal not attributed to genuine redundancy
  • For small business employees, the dismissal must not align with the Small Business Fair Dismissal Code.

National System Employers

The Act largely applies to ‘National System Employers.’ These employers, though defined slightly differently across states, are bound by the Act. On the flip side, entities outside this classification aren’t covered by the Act but fall under other legislations like state-based laws.

Eligibility Requirements for Application

To be eligible for an unfair dismissal application, an employee must:

  • Have completed a minimum employment period (six months for employers with 15 or more employees, or 12 months for those with less than 15 employees)
  • Earn less than the high income threshold, or be covered by a modern award or enterprise agreement, even if their income exceeds this threshold
  • Have been dismissed, which includes casual employees working on a regular basis with a reasonable expectation of continued employment.

Understanding Dismissal

A dismissal involves termination at the employer’s initiative or forced resignation due to the employer’s conduct.

What Qualifies as ‘Harsh, Unjust, or Unreasonable’?

A dismissal is considered ‘harsh, unjust, or unreasonable’ if the punishment outweighs the employee’s misconduct, if the employee was innocent of the alleged misconduct, or if the evidence doesn’t support the dismissal. In these cases, the FWC must consider several criteria as outlined in Section 387 of the Act.

Valid Reasons for Dismissal

A valid reason for dismissal could relate to the employee’s conduct, capacity, or performance. This reason must be founded on solid grounds and should not be whimsical or biased. It may include employee misconduct, incapacity to perform their role, or poor job performance.

Conduct and Capacity

Inappropriate behaviour, violation of company policies, or inability to fulfill the job requirements can lead to dismissal. Actions outside of work hours that significantly affect the employment relationship or the employer’s interests may also be considered.


Substandard job performance can be grounds for dismissal. However, employees must be warned about their performance and given an opportunity to improve before being dismissed.

Ultimately, each case is unique, and the outcome depends on the specifics of the situation and the employee’s work history. If you find yourself navigating this complex landscape, don’t hesitate to speak with Frontline Employment Defenders Now For further assistance.

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

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