Can I dispute my dismissal?

If you are dismissed from your employment you should consider whether the dismissal was unfair or unlawful.  Some dismissals will be both unfair and unlawful, and you will need to make a choice about which action you take. If you are dismissed you should immediately seek legal advice.

Time limit to bring a dismissal-related claim

You must lodge any unfair dismissal, or any other dismissal-related claim, in the Fair Work Commission (FWC) within 21 days from the date the dismissal takes effect. The date the dismissal takes effect is usually your last day of work.

Eligibility to bring an unfair dismissal claim in the Fair Work Commission

Employees are protected for unfair dismissal if they:

  • are employed by a national system employer (in Queensland all employers are national system employers except state and local government employers)
  • have completed the minimum period of employment which is six months or 12 months if the employer is a small business employer
  • are earning less than the high income threshold or are covered by a modern award or enterprise agreement.

It is not an unfair dismissal if the dismissal is a genuine redundancy.

Employees who are engaged for a fixed term or for the period of a training contract may be ineligible to bring an unfair dismissal case if their employment ends at the end of that contract period. This is important for almost all apprentices who usually have contracts of employment linked to their training contract. Usually, apprentices can only bring unfair dismissal actions if their employment is terminated during the term of their contract.

It is very uncommon for apprentices to be casual employees, however, it is important to note that periods of service as a casual employee will not always count towards the minimum employment period unless the casual employment is regular and systematic, and the employee has a reasonable expectation of ongoing employment.

The FWC website has an eligibility quiz to assist you in understanding whether you are entitled to make an application for unfair dismissal.

What is an unfair dismissal?

A dismissal will be unfair if it is harsh, unjust or unreasonable.

Small business employers

An employer is a small business if it employs fewer than 15 employees at the time of dismissal. All employees are counted including the dismissed employee (and anyone else dismissed at the same time) except casual employees unless they are employed on a regular and systematic basis.

It can sometimes be difficult to work out whether an employer is a small business or not, particularly for franchises and family businesses. If there is any doubt over the size of a business, you should get legal advice.

Small business employers must follow the Small Business Fair Dismissals Code. If they follow all the steps in that Code then usually the dismissal will not be an unfair dismissal.

All other national system employers

For all other employers, there is a list of considerations in the Fair Work Act 2009 (Cth) (Fair Work Act) that the FWC must take into account when it is considering whether a dismissal was harsh, unjust or unreasonable:

(a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

 (h)  any other matters that the FWC considers relevant.

In cases of serious misconduct, it is not generally necessary to have gone through a disciplinary process prior to dismissal.

Fair Work Commission process—unfair dismissal

Detailed information about the unfair dismissal application process is available on the FWC website.

For more information on making an application for an unfair dismissal remedy, see the Unfair Dismissal Benchbook on the FWC’s website.

General protections actions

While only some employees are protected against unfair dismissal, all employees have basic protections provided to them from the recruitment stage, throughout their employment and at the end of their employment. These basic protections are called ‘General Protections’ in the Fair Work Act.

The time limit for bringing a general protections claim relating to dismissal is the same as for unfair dismissal; 21 days from the date that the dismissal takes effect. For claims not related to dismissal, that very short 21-day time limit does not apply, and affected employees can bring actions up to six years from the date of the breach of the general protections provision.

The general protections aim to protect employees from adverse action taken (including dismissal) because of a proscribed reason. The terms ‘adverse action’ and ‘proscribed reason’ have particular legal meanings.

Adverse action

Under the general protections provisions, adverse action can be:

  • dismissing an employee
  • altering the position of the employee to that employee’s disadvantage
  • discriminating between an employee and other employees
  • injuring an employee in their employment.

The sort of action that has been found to be ‘adverse action’ has included:

  • demoting an employee
  • making derogatory comments to an employee
  • reducing an employee’s status and level of responsibility
  • forcing a transfer from one location to another.

If the adverse action is taken because of a proscribed reason, it may breach the general protections provisions.

Proscribed reason

It is unlawful for an employer to take adverse action against an employee (or potential employee):

  • for a discriminatory reason (race, colour, sex, sexual orientation, age, physical/mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, social origin)
  • because the employee has a work place right or has exercised/proposes to exercise a work place right
  • because an employee has been temporarily absent because of an illness or injury.

Workplace rights include for example making complaints or enquiries about employment, bringing a complaint to the Fair Work Commission or another body handling workplace complaints, making a work cover claim, taking protected industrial action, raising issues of workplace health and safety and many other basic rights provided for by a range of employment-related legislation and other instruments.

There are also other basic protections provided by the general protections provisions including against sham contracting (i.e. where an employee is improperly classified as an independent contractor reducing their rights and entitlements in the workplace).

The FWC website has an eligibility quiz to assist you in understanding whether you are entitled to make a general protections application.

If your claim is successful, you may be reinstated or awarded an amount of monetary compensation. There are also possible penalties for employers who have breached general protections provisions.

Fair Work Commission process—general protections

Detailed information about the general protections application process is available on the FWC website.

The General Protections Benchbook on the FWC’s website is also an excellent resource regarding general protections applications.

How to choose between unfair dismissal and general protections (dismissal) when both apply

If you have been dismissed and you think that the dismissal was both unfair and in breach of the general protections provisions, then you have to choose which claim you bring. You cannot bring both.

For some people there is sometimes a third or even fourth option. For example, if a woman is dismissed because she is pregnant she may have the option of unfair dismissal, general protections (dismissal), or a claim under anti-discrimination law.

Making the decision about which claim to make normally requires legal advice. A lawyer will go through a number of different considerations and talk about which option is best.  The sorts of issues that come up in this decision-making process typically include:

  • which option offers the best likely remedy
  • the risks of each option, including whether there is a risk of having to pay for legal costs
  • whether the person has a lawyer
  • how long and complicated each of the legal processes are
  • the available evidence to prove each of the possible actions.

Common law claims

Common law claims can be made where your employer has breached the terms and conditions of your contract in terminating your employment. For example, you may be eligible to bring a breach of contract claim where your employer did:

  • not follow a policy or procedure in investigating conduct or terminating your employment
  • not provide notice
  • not pay your entitlements.

In Queensland, common law claims are brought in the Supreme Court, District Court or the Magistrates Court. Alternatively, claims can be made in the Federal Court or Federal Circuit Court. In all of these courts, if you lose your claim you will normally be ordered to pay the legal costs of the successful other party. It is essential that legal advice is taken before considering a common law claim.

If you are successful in your claim, you may be entitled to a compensation for an amount that is equivalent to that which you would have earned if your contract was not breached by your employer.

The time limit for making a claim for breach of contract or wrongful dismissal is six years from the date the cause of action arose (i.e. six years from the date when your dismissal took effect).

How does my dismissal affect my traineeship or apprenticeship?

In circumstances where your employment is terminated during the course of your traineeship or apprenticeship, your traineeship or apprenticeship with that employer will end. You may commence a new traineeship or apprenticeship with a new employer.

Where you commence a new traineeship or apprenticeship, you and your new employer will be required to sign a new training contract and register this contract.

You are entitled to keep your training record to show new employers what training you have already completed. If the new training contract is for the same apprenticeship, time credit should be granted for previous service or experience.

More information from the Queensland Law Handbook

All the topics mentioned on this page are discussed in more detail in the employment law chapter of the Queensland Law Handbook.