Unfair Dismissal Check for Australian Employers

Part 3-2 of the Fair Work Act 2009 (Cth) protects employees in the national system from being dismissed in a way that is harsh, unjust or unreasonable. An employee is protected once they have completed the minimum employment period of six months, or 12 months if the employer is a small business with fewer than 15 employees (section 383), and they are covered by a modern award or enterprise agreement or earn below the high income threshold (section 382). When deciding a claim, the Fair Work Commission looks at whether there was a valid reason related to capacity or conduct, whether the employee was told the reason and given a chance to respond, whether a support person was refused, and whether there were earlier warnings about poor performance (section 387). A dismissal is not unfair if it was a case of genuine redundancy (section 389) or, for small businesses, if the employer followed the Small Business Fair Dismissal Code (section 388).

Employees have only 21 days from the dismissal to apply to the Commission (section 394), and claims are common: the Commission receives well over 10,000 unfair dismissal applications a year. Remedies include reinstatement or compensation of up to 26 weeks’ pay, capped at half the high income threshold (section 392). Separate general protections claims (Part 3-1) have no compensation cap and can be brought regardless of length of service if a dismissal is linked to a workplace right, illness or a protected attribute. Employers must also give the right notice of termination or pay in lieu (section 117) and, for businesses with 15 or more employees, redundancy pay (section 119). A fair, documented process protects you far better than settling claims after the event.

Use this free unfair dismissal check to see whether your dismissal process meets Fair Work Act requirements and the Small Business Fair Dismissal Code, and what to put right before you act.