Unfair Dismissal & Termination
Employment Law
Key Takeaway
We provide strategic advice and representation to both employers and employees in unfair dismissal claims and all aspects of employment termination under the Fair Work Act 2009.
We provide strategic advice and representation to both employers and employees in unfair dismissal claims and all aspects of employment termination under the Fair Work Act 2009. Our practice covers the full spectrum of termination-related disputes, from advising on the procedural and substantive requirements for a valid dismissal through to representation in Fair Work Commission proceedings and appeals. We act for employers in defending unfair dismissal claims and for employees in bringing claims. Our unfair dismissal practice is built on thorough understanding of the Fair Work Act provisions governing dismissal, including the definition of dismissal, exclusion provisions, criteria for determining whether a dismissal was harsh, unjust, or unreasonable, and remedies available including reinstatement and compensation.
Our unfair dismissal and termination practice provides end-to-end advice and representation from pre-termination strategy through to post-termination dispute resolution. We advise employers on termination based on conduct, capacity, operational requirements, and mutual agreement, assessing legal risks and advising on steps to minimise those risks. Our procedural fairness advice guides employers through show cause processes, genuine consideration of employee responses, and documentation of decisions. We represent clients in Fair Work Commission conciliation conferences and arbitration hearings, and advise on general protections claims involving dismissal, including the election provisions requiring employees to choose between jurisdictions.
Unfair Dismissal Framework & Jurisdictional Requirements
The unfair dismissal provisions of the Fair Work Act 2009 provide a comprehensive framework for review of dismissals that are harsh, unjust, or unreasonable. We advise on the jurisdictional requirements that must be satisfied before the Fair Work Commission can hear a claim. The applicant must be a person protected from unfair dismissal, having completed the minimum employment period and not being excluded by the high-income threshold or other exclusions. The 21-day time limit for lodging an application is strictly enforced, and we advise on circumstances in which an extension may be granted. For small business employers, the Small Business Fair Dismissal Code provides a modified framework.
Procedural Fairness & Defending Unfair Dismissal Claims
Procedural fairness is critical to any defensible termination decision. The Fair Work Commission scrutinises the process followed by the employer under the section 387 criteria, including whether there was a valid reason for dismissal, whether the employee was notified of that reason and given an opportunity to respond, whether there was any unreasonable refusal of a support person, and whether the employee had been warned about unsatisfactory performance. We guide employers through each criterion, ensuring the process is properly documented and defensible. Our advice covers show cause letters, conduct of meetings, genuine consideration of responses, and preparation of termination letters.
Remedies & Resolution of Unfair Dismissal Claims
The remedies available for unfair dismissal include reinstatement, compensation, and other orders. The Fair Work Commission must consider reinstatement as the primary remedy and may only order compensation if reinstatement is inappropriate. The maximum compensation is the lesser of 26 weeks of the employee's remuneration or the amount calculated under the compensation formula. We advise on calculation of compensation including lost remuneration, application of the cap, reduction for contingencies and misconduct, and mitigation of loss. Our settlement practice includes negotiation and documentation of terms of settlement, deeds of release, and advice on tax treatment of settlement payments.
General Protections, Constructive Dismissal & Adverse Action
Employees may bring general protections claims alleging dismissal in contravention of a general protection, including claims motivated by a prohibited reason such as race, sex, age, disability, or family responsibilities. General protections claims are not subject to the high-income threshold or minimum employment period. The onus of proof reverses once the employee establishes facts from which it may be inferred that the employer took adverse action for a prohibited reason. Constructive dismissal occurs where an employee is forced to resign because of employer conduct. We advise on both bringing and defending these claims.
Unfair Dismissal & Termination FAQs (Queensland Law)
What constitutes unfair dismissal under the Fair Work Act?
Under this provision, our team helps clients understand their rights. under s 385 of the Fair Work Act 2009, a dismissal is unfair if: the person was dismissed, the dismissal was harsh/unjust/unreasonable, it was not consistent with the Small Business Fair Dismissal Code, and it was not genuine redundancy.
What is the 21-day time limit for unfair dismissal claims?
An unfair dismissal application must be lodged with the Fair Work Commission within 21 calendar days after the dismissal takes effect. Our team ensures your application is filed on time. The Fair Work Commission will first attempt to conciliate the matter before proceeding to hearing.
What is the Small Business Fair Dismissal Code?
At our firm, the Code applies to employers with fewer than 15 employees. A dismissal is not unfair if the employer had a valid reason, notified the employee, and gave them an opportunity to respond. For summary dismissal, the employer must reasonably believe the conduct justified it.
What constitutes genuine redundancy?
At our firm, a genuine redundancy occurs when the employer no longer requires the job to be performed by anyone due to operational changes or restructure. The employer must comply with award/agreement consultation requirements and consider redeployment.
What remedies are available for unfair dismissal?
At our firm, remedies include reinstatement (primary remedy) and compensation (secondary remedy). Compensation is capped at the lesser of 26 weeks pay or the amount calculated under the Fair Work Act formula, currently up to ,500.
Unfair Dismissal & Termination Services
- Advice on procedural requirements for a valid dismissal under the Fair Work Act including procedural fairness
- Representation in Fair Work Commission unfair dismissal proceedings including conciliation, arbitration, and appeals
- Advice on the application of the high-income threshold, minimum employment period, and other jurisdictional exclusions
- Defence of unfair dismissal claims including preparation of employer responses, witness statements, and submissions
- Prosecution of unfair dismissal claims on behalf of employees including lodgement of applications and representation
- Advice on genuine redundancy and circumstances in which a redundancy dismissal is not an unfair dismissal
- General protections claims involving dismissal including advice on election between jurisdictions
- Summary dismissal for serious misconduct including advice on what constitutes serious misconduct at law
- Performance management and termination for capacity including PIP processes and documentation
- Terms of settlement and deed of release preparation for resolution of termination disputes
- Restoration and reinstatement orders including advice on practical implementation of reinstatement
- Advice on adverse action claims, constructive dismissal, and forced resignation circumstances
Last updated: July 2026
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