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Unfair Dismissal and
Contesting Under the Fair
Work Act
Connolly Suthers
AMP Building, 416 Flinders Street
Townsville, QLD 4810 Australia
07 4771 5664
Unfair dismissal is the termination of a contract of employment for unfair or inadmissible reasons.
Contract termination also qualifies as unfair dismissal if the employer uses the wrong procedure in
handling the dismissal.
What Constitutes Termination of Contract
The termination of an employee’s contract may be for the following reasons:
Capability: The employee provided false and misleading information about one’s qualifications. They
may also be fired due to incompetence.
• Conduct: The employee committed countless offences, from regularly being late to
committing theft.
• Breaches of Civil or Criminal Law: An employee is automatically dismissed for breaking the
law, as they are at fault of gross misconduct and are putting the company in a bad light.
• Redundancy: An employer reduces their workforce because the jobs are no longer needed.
• Constructive Dismissal: If the employee feels lie their working environment has become
hostile, abusive or intimidating, they may choose to resign. However, since the resignation came
about as a forced decision and not really by choice, the situation is considered a termination.
Other reasons an employer might be terminated include the refusal to work with a colleague or with
a certain piece of equipment, or for a certain client; and upon client request.
Contesting Unfair Dismissal under the Fair Work Act
According to the Fair Work Act, an employee is protected from unfair dismissal and is eligible to
apply for a remedy if:
• they have completed a minimum period of employment, usually six months
• they earn less than the high-income threshold
• a modern award covers the employment; or
• an enterprise agreement applies to the employment
Contesting Unfair Dismissal under the Fair Work Act
According to the Fair Work Act, an employee is protected from unfair dismissal and is eligible to
apply for a remedy if:
• they have completed a minimum period of employment, usually six months
• they earn less than the high-income threshold
• a modern award covers the employment; or
• an enterprise agreement applies to the employment
When an employee’s contract comes to an end and they believe they were unfairly dismissed, they
can make an application to the Fair Work Commission (FWC) within 21 days after the dismissal takes
effect. The employee must prove that they have been unfairly dismissed.
If the employer objects to the charge, they must prove the following to defend themselves:
• That they followed proper employment procedures
• That they did not treat the complainant as a special case
• That they made the complainant aware of all company policies
Sources
https://www.connollysuthers.com.au/
https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-
workplace-entitlements/ending-employment
https://www.fwc.gov.au/unfair-dismissals-benchbook/overview-unfair-dismissal
https://www.totaljobs.com/advice/what-is-redundancy

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Unfair dismissal and contesting under the fair work act

  • 1. Unfair Dismissal and Contesting Under the Fair Work Act Connolly Suthers AMP Building, 416 Flinders Street Townsville, QLD 4810 Australia 07 4771 5664
  • 2. Unfair dismissal is the termination of a contract of employment for unfair or inadmissible reasons. Contract termination also qualifies as unfair dismissal if the employer uses the wrong procedure in handling the dismissal. What Constitutes Termination of Contract The termination of an employee’s contract may be for the following reasons: Capability: The employee provided false and misleading information about one’s qualifications. They may also be fired due to incompetence. • Conduct: The employee committed countless offences, from regularly being late to committing theft. • Breaches of Civil or Criminal Law: An employee is automatically dismissed for breaking the law, as they are at fault of gross misconduct and are putting the company in a bad light. • Redundancy: An employer reduces their workforce because the jobs are no longer needed. • Constructive Dismissal: If the employee feels lie their working environment has become hostile, abusive or intimidating, they may choose to resign. However, since the resignation came about as a forced decision and not really by choice, the situation is considered a termination. Other reasons an employer might be terminated include the refusal to work with a colleague or with a certain piece of equipment, or for a certain client; and upon client request. Contesting Unfair Dismissal under the Fair Work Act According to the Fair Work Act, an employee is protected from unfair dismissal and is eligible to apply for a remedy if:
  • 3. • they have completed a minimum period of employment, usually six months • they earn less than the high-income threshold • a modern award covers the employment; or • an enterprise agreement applies to the employment Contesting Unfair Dismissal under the Fair Work Act According to the Fair Work Act, an employee is protected from unfair dismissal and is eligible to apply for a remedy if: • they have completed a minimum period of employment, usually six months • they earn less than the high-income threshold • a modern award covers the employment; or • an enterprise agreement applies to the employment When an employee’s contract comes to an end and they believe they were unfairly dismissed, they can make an application to the Fair Work Commission (FWC) within 21 days after the dismissal takes effect. The employee must prove that they have been unfairly dismissed. If the employer objects to the charge, they must prove the following to defend themselves: • That they followed proper employment procedures • That they did not treat the complainant as a special case • That they made the complainant aware of all company policies