Understanding Unfair Dismissals. Grounds and Eligibility.
Navigating an unfair dismissal claim requires understanding complex Fair Work Act provisions, strict eligibility criteria, and defensible evidence. Here's what you need to know to protect your rights.
What Constitutes An Unfair Dismissal Under The Fair Work Act
Losing your job is one of the most stressful experiences anyone can face. The financial uncertainty, the emotional toll, and the sudden disruption to your daily life can feel overwhelming. When you believe your dismissal was unfair, those feelings are compounded by a sense of injustice that can be difficult to process. We understand how challenging this time is for you, and it's important to know that the Fair Work Act 2009 provides protections designed to ensure employees are treated fairly when their employment ends.
Under the Fair Work Act, an unfair dismissal occurs when an employee's termination is harsh, unjust, or unreasonable. This means the dismissal was not justified by a valid reason relating to your capacity or conduct, or it was not carried out in a procedurally fair manner. The Fair Work Commission considers several factors when assessing whether a dismissal was unfair, including whether there was a valid reason for the dismissal, whether you were notified of that reason and given an opportunity to respond, whether you were allowed to have a support person present during discussions, and whether the decision was made by someone who had appropriate authority within the organization.
It's also important to understand what doesn't constitute an unfair dismissal under the Act. Genuine redundancies, dismissals during a qualifying period of employment (typically the first six months for small businesses or first 12 months for other employers), dismissals of casual employees (except in certain regular and systematic engagement circumstances), and terminations due to the end of a fixed-term contract generally fall outside unfair dismissal protections. However, each situation is unique, and what may appear straightforward can involve complex legal considerations that require careful analysis.
Who Can Lodge An Unfair Dismissal Claim
If you've been dismissed and believe it was unfair, understanding whether you're eligible to lodge a claim is the crucial first step. The eligibility criteria can be technical, but they exist to ensure the system protects those employees who are covered by the national workplace relations system. You must have been employed by a national system employer (which includes most private sector employers and some public sector organizations), and you must have completed the minimum employment period—six months for small businesses with fewer than 15 employees, or 12 months for larger employers.
There are also earnings thresholds to consider. If your annual earnings exceed the high income threshold (indexed annually and currently $167,500 for the 2024 financial year) and you weren't covered by a modern award or enterprise agreement, you won't be eligible to lodge an unfair dismissal claim. This threshold recognizes that higher-earning employees typically have greater bargaining power and access to legal remedies through common law contractual claims.
Timing is absolutely critical when considering an unfair dismissal claim. You must lodge your application with the Fair Work Commission within 21 days of the dismissal taking effect. This is a strict timeframe, and while the Commission has discretion to accept late applications in exceptional circumstances, it's far better to act promptly. We recognize that when you're dealing with the shock and stress of losing your job, meeting tight deadlines can feel impossible but protecting your rights requires swift action. If you're unsure whether you meet the eligibility criteria or how to calculate the timing, seeking legal advice immediately can make all the difference in preserving your claim.
Valid Reasons And Procedural Fairness, The Two Pillars Of A Fair Dismissal
When the Fair Work Commission assesses whether a dismissal was unfair, it examines two fundamental elements, whether there was a valid reason for the dismissal, and whether the process followed was procedurally fair. Both elements matter, and a deficiency in either can render a dismissal unfair. Understanding these pillars can help you assess your own situation and determine whether you have grounds for a claim.
A valid reason for dismissal must relate to your capacity or conduct as an employee. Capacity-based reasons might include consistent underperformance despite training and support, an inability to meet the genuine requirements of the role, or a lack of necessary qualifications or skills. Conduct-based reasons could involve serious misconduct such as theft, fraud, violence, or repeated breaches of workplace policies despite warnings. However, for a reason to be considered valid, it must be sound, defensible, and well-founded not merely a subjective opinion or a convenient excuse. Importantly, the employer bears the burden of proving the valid reason existed.
Procedural fairness is equally critical. Even if a valid reason exists, the dismissal may still be unfair if proper process wasn't followed. This means the employer should have clearly notified you of the concerns or allegations, provided you with a genuine opportunity to respond to those concerns, considered your response with an open mind, allowed you to have a support person present during meetings, and ensured the decision-maker was unbiased and appropriately authorized. The concept of procedural fairness recognizes your fundamental right to be heard before a decision that significantly affects your livelihood is made.
We know how frustrating it can be when you feel you weren't given a fair chance to explain yourself, or when decisions seem to have been made before you were even consulted. These procedural failures can transform what might have been a lawful termination into an unfair dismissal. The law recognizes that how you're treated during the dismissal process matters just as much as whether grounds for dismissal existed in the first place.
Evidence, Documentation, And Business Grounds
One of the most challenging aspects of unfair dismissal claims for both employees and employers is the central role that evidence and documentation play in the Fair Work Commission's assessment. If you're considering lodging a claim, gathering and preserving evidence from the earliest possible moment is essential. Conversely, if you're an employer reading this, understanding the evidentiary standards required to defend a dismissal decision is critical to minimizing legal risk and ensuring compliance with Fair Work Act obligations.
For employees, relevant evidence might include your employment contract, position description, performance reviews and appraisals, correspondence with your employer (emails, text messages, letters), warnings or disciplinary notices you received, witness statements from colleagues, records of meetings or conversations about your performance or conduct, and medical certificates or other documentation supporting any explanations you provided. Even seemingly minor documentation can become significant when the Fair Work Commission is piecing together what actually happened and whether the process was fair. If you don't have copies of important documents, you may be able to request them from your former employer, or the Commission can issue orders requiring their production.
For employers, the evidentiary burden is even more demanding. You must be able to demonstrate not only that a valid reason existed, but that you followed a fair process and made a reasonable decision based on the circumstances. This requires contemporaneous documentation of performance issues, clear records of warnings and opportunities to improve, detailed notes of investigation processes if misconduct was alleged, evidence that the employee was given a chance to respond, and documentation of the reasoning behind the final decision. Business grounds such as operational requirements, financial constraints, or organizational restructuring must be quantified, documented, and clearly communicated. Vague or retrospective justifications are unlikely to withstand scrutiny.
We recognize that in the immediate aftermath of a dismissal, gathering evidence can feel overwhelming when you're already dealing with emotional and financial stress. Similarly, for employers, the pressure of defending a claim while managing ongoing business operations can be intense. However, the quality and completeness of your evidence will often determine the outcome of an unfair dismissal matter. Taking the time to organize your documentation and seek expert advice on what evidence is most relevant can significantly strengthen your position, whether you're bringing or defending a claim.
How Northbridge Legal Supports You Through The Fair Work Commission Processes
Navigating the Fair Work Commission's unfair dismissal processes can feel daunting, especially when you're dealing with the emotional and financial impact of job loss. The legal framework is complex, the timeframes are strict, and the stakes are high. Whether you're an employee who believes you've been unfairly dismissed or an employer facing a claim, having experienced legal representation can make a substantial difference to both the process and the outcome.
At Northbridge Legal, we bring deep expertise in employment and workplace law, with particular experience in Fair Work Commission proceedings and unfair dismissal matters. We understand the technical requirements of the Fair Work Act, the evidentiary standards the Commission applies, and the practical realities of what makes a strong case. More importantly, we recognize the human dimension of these disputes the stress, uncertainty, and sense of injustice that often accompany them. Our approach combines rigorous legal analysis with genuine empathy for the difficult circumstances you're facing.
For employees considering an unfair dismissal claim, we provide clear, actionable advice on your eligibility, the strength of your case, and the realistic outcomes you can expect. We'll help you gather and organize the evidence needed to support your claim, draft your application to the Fair Work Commission, represent you throughout conciliation processes where many matters are successfully resolved, and if necessary, advocate for you at a full hearing before the Commission. We explain each step in plain language, ensuring you understand your options and can make informed decisions about how to proceed. Our goal is not only to achieve the best possible legal outcome but also to provide you with the support and clarity you need during an inherently stressful time.
For employers, we offer strategic advice on managing dismissal processes to minimize the risk of unfair dismissal claims, comprehensive reviews of your documentation and evidence if a claim has been lodged, representation in responding to applications and throughout Commission proceedings, and guidance on settlement negotiations and remedies. We help you build a defensible case grounded in documented business grounds, valid reasons, and procedurally fair processes. Our evidence-based approach emphasizes the importance of contemporaneous documentation and quantified justifications the foundation of any successful defense.
The Fair Work Commission process typically begins with conciliation, where a Commission member facilitates discussions between the parties to explore settlement options. Many unfair dismissal matters are resolved at this stage, avoiding the time, cost, and uncertainty of a full hearing. If conciliation doesn't result in agreement, the matter proceeds to a hearing where both parties present evidence and submissions, and the Commission makes a determination. Throughout every stage, having legal representation ensures your interests are protected, your case is presented effectively, and you're positioned for the best possible outcome.
We know that whether you've lost your job or you're defending your organization against a claim, the uncertainty and complexity of the Fair Work Commission processes can feel overwhelming. At Northbridge Legal, we're here to guide you through every step with clarity, expertise, and genuine care for your circumstances. If you're facing an unfair dismissal situation—on either side—we encourage you to reach out for a confidential discussion about how we can help protect your rights and achieve a fair resolution.
