Unfair dismissal claims are among the most common employment disputes in Australia. The Fair Work Commission received over 14,000 applications in the last financial year. Prevention starts with understanding the legal framework.
Who Can Claim
Employees covered by the national workplace relations system who have completed the minimum employment period (six months, or 12 months for small business employers) and earn below the high-income threshold can lodge unfair dismissal claims.
What Makes a Dismissal Unfair
A dismissal is unfair if it is harsh, unjust, or unreasonable. The Commission considers whether there was a valid reason for dismissal, whether the employee was notified and given an opportunity to respond, and whether proper process was followed.
The Small Business Fair Dismissal Code
Small businesses with fewer than 15 employees can rely on the Small Business Fair Dismissal Code. If you follow the Code, a dismissal will not be found to be unfair. The Code requires a valid reason, a warning (for non-serious misconduct), and a reasonable belief that the employee's conduct justified dismissal.
Documentation Is Key
The single most important factor in defending unfair dismissal claims is documentation. Keep records of performance discussions, written warnings, investigation notes, and the termination meeting. Without documentation, it becomes a credibility contest.