--- title: "Unfair Dismissal Guide | Astris Law" description: "Guide to unfair dismissal claims in Australia. What the Fair Work Commission considers under s 387, case examples and practical compliance steps." lang: en-AU json-ld: | [ { "@context": "https://schema.org", "@type": [ "LegalService", "LocalBusiness" ], "@id": "https://www.astrislaw.com/#organization", "name": "Astris Law", "legalName": "Astris Law Pty Ltd", "alternateName": [ "Astrons General Counsel", "Phronesis Litigation", "HeadStart Counsel" ], "url": "https://www.astrislaw.com", "logo": { "@type": "ImageObject", "url": "https://www.astrislaw.com/android-chrome-512x512.png", "width": 512, "height": 512 }, "image": "https://www.astrislaw.com/android-chrome-512x512.png", "description": "The Astris Law group gives directors and business owners the right legal capability for whatever their business needs, across corporate, disputes and regulatory. Not more lawyers than you need, the right one for the matter. 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Whether the dismissal was harsh, unjust or unreasonable depends on specific criteria in s 387 of the Fair Work Act - and the cases show that process matters as much as the reason for termination.", "image": "https://www.astrislaw.com/images/articles/unfair-dismissal.jpg", "datePublished": "2024-09-05", "dateModified": "2024-09-05", "author": { "@type": "Person", "@id": "https://www.astrislaw.com/attorney/jamie-nuich#person", "name": "Jamie Nuich", "jobTitle": "Legal Practitioner Director", "url": "https://www.astrislaw.com/attorney/jamie-nuich", "sameAs": [ "https://www.linkedin.com/in/jamienuich/", "https://www.qls.com.au/register-of-solicitors/jamie-leanne-nuich", "https://www.youandthelaw.com.au/organisation/98611/astris-law-pty-ltd" ], "hasCredential": [ { "@type": "EducationalOccupationalCredential", "credentialCategory": "Professional License", "name": "Admission to Practice", "recognizedBy": { "@type": "Organization", "name": "Supreme Court of Queensland" } } ], "affiliation": { "@type": "LegalService", "@id": "https://www.astrislaw.com/#organization", "name": "Astris Law", "url": "https://www.astrislaw.com" } }, "publisher": { "@id": "https://www.astrislaw.com/#organization" }, "about": { "@type": "LegalService", "name": "Employment", "serviceType": "Employment" }, "mainEntityOfPage": { "@id": "https://www.astrislaw.com/article/employment-termination-unfair-dismissal#webpage" }, "isPartOf": { "@id": "https://www.astrislaw.com/#website" }, "speakable": { "@type": "SpeakableSpecification", "cssSelector": [ ".article-summary", ".article-description" ] }, "inLanguage": "en-AU", "wordCount": 1089, "timeRequired": "PT6M", "articleSection": [ "Publication", "Employment" ], "keywords": "Employment, Publication, employment, workplace, relations" }, { "@type": "BreadcrumbList", "itemListElement": [ { "@type": "ListItem", "position": 1, "name": "Home", "item": "https://www.astrislaw.com" }, { "@type": "ListItem", "position": 2, "name": "Articles", "item": "https://www.astrislaw.com/articles" }, { "@type": "ListItem", "position": 3, "name": "Unfair Dismissal in Australia: What the Fair Work Commission Actually Considers", "item": "https://www.astrislaw.com/article/employment-termination-unfair-dismissal" } ] } ] } ] --- [Skip to main content](#main-content) The Astris Law Group Astris Astris Law [Astrons Astrons General Counsel ](https://astrons.astrislaw.com)[Phronesis Phronesis Litigation ](https://phronesis.astrislaw.com)[HeadStart HeadStart Counsel ](https://headstartcounsel.astrislaw.com) [![Astris Law S Icon](/assets/astris-logo-icon-kBkGra_r.png)![Astris Law](/assets/astris-logo-full-wbEHTWR5.png)](/) [About](/about)[The Group](/philosophy)[Practice Areas](/practice-areas)[Articles](/articles)[Contact](/contact)[Start here](/contact) [← Back to Articles](/articles)| [Employment →](/practice/employment-workplace-relations) Publication 5 September 2024 • 6 min read # Unfair Dismissal in Australia: What the Fair Work Commission Actually Considers ## Summary The Fair Work Commission decides hundreds of unfair dismissal claims every year. Whether the dismissal was harsh, unjust or unreasonable depends on specific criteria in s 387 of the Fair Work Act - and the cases show that process matters as much as the reason for termination. Last reviewed 5 September 2024 · Reviewed by [Jamie Nuich](/attorney/jamie-nuich), Legal Practitioner Director ## Key Takeaways - The Fair Work Commission assesses unfair dismissal claims against the criteria in s 387 of the Fair Work Act 2009 (Cth), and a valid reason for termination is necessary but not sufficient if the employer fails to follow a fair process. - Eligibility requires completing the minimum employment period (6 months, or 12 months for small businesses), earning below the high income threshold ($175,000) or being covered by a modern award and lodging within a strict 21-day time limit. - The most common reason employers lose unfair dismissal claims is procedural failure, including no prior warning, no opportunity to respond, ambush meetings and denying a support person. - Compensation for unfair dismissal is capped at 26 weeks' pay under s 392, but employees ineligible for unfair dismissal may bring uncapped general protections claims under Part 3-1 with a reverse onus of proof under s 361. - Employers with fewer than 15 employees can rely on the Small Business Fair Dismissal Code under s 388, which deems a dismissal fair if the employer followed its requirements. ![An employee leaving the office, illustrating unfair dismissal before the Fair Work Commission](/images/articles/unfair-dismissal.jpg) In This Article 1. [1. Who Can Claim Unfair Dismissal?](#who-can-claim-unfair-dismissal) 2. [2. The Section 387 Criteria](#the-section-387-criteria) 3. [3. Process Failures: Where Most Employers Lose](#process-failures-where-most-employers-lose) 4. [4. Serious Misconduct: When Summary Dismissal Is Justified](#serious-misconduct-when-summary-dismissal-is-justified) 5. [5. The Small Business Fair Dismissal Code](#the-small-business-fair-dismissal-code) 6. [6. Remedies: Reinstatement and Compensation](#remedies-reinstatement-and-compensation) 7. [7. General Protections: The Alternative Claim](#general-protections-the-alternative-claim) 8. [8. Conclusion](#conclusion) Unfair dismissal is one of the most common employment disputes in Australia. The Fair Work Commission (FWC) received over 14,000 unfair dismissal applications in the 2023-24 financial year. For employers, the risk is not limited to compensation orders - the process of defending a claim consumes management time, legal fees and organisational focus. For employees, understanding how the FWC actually assesses claims is essential to knowing whether you have a case worth pursuing. Astris Law acts for both employers and employees in unfair dismissal proceedings. **Have you been served with an unfair dismissal claim?** We act for employers defending claims in the Fair Work Commission. Call [(07) 3519 5616](tel:+61735195616). ## Who Can Claim Unfair Dismissal? To be eligible to make an unfair dismissal application under s 382 of the Fair Work Act 2009 (Cth), the employee must: - Have completed the minimum employment period (12 months for small business employers with fewer than 15 employees; 6 months for all other employers) - Earn less than the high income threshold (currently $175,000 per year) or be covered by a modern award or enterprise agreement - Not have been dismissed as part of a genuine redundancy - Lodge the application within 21 days of the dismissal taking effect The 21-day time limit is strictly enforced. Extensions are granted only in exceptional circumstances under s 394(3). ## The Section 387 Criteria When assessing whether a dismissal was harsh, unjust or unreasonable, the FWC must consider the criteria in s 387: - **(a) Valid reason:** Whether there was a valid reason for the dismissal related to the employee's capacity or conduct - **(b) Notification:** Whether the employee was notified of that reason - **(c) Opportunity to respond:** Whether the employee was given an opportunity to respond to any reason related to their conduct or capacity - **(d) Unreasonable refusal of support person:** Whether the employer unreasonably refused to allow the employee a support person during discussions about the dismissal - **(e) Performance warnings:** If the dismissal was related to unsatisfactory performance, whether the employee was warned about that performance - **(f) Business size:** The degree to which the size of the employer's enterprise would impact on procedures followed - **(g) HR capability:** The degree to which the absence of dedicated human resource management expertise would impact on procedures followed - **(h) Any other relevant matters** ## Process Failures: Where Most Employers Lose The consistent theme across FWC decisions is that a valid reason for dismissal is necessary but not sufficient. Employers who have a legitimate basis for termination still lose unfair dismissal claims when they fail to follow a fair process. Common procedural failures include: - **No warning:** Dismissing an employee for poor performance without prior warnings or a performance improvement plan - **No opportunity to respond:** Deciding to terminate before giving the employee a meaningful chance to respond to the allegations - **Ambush meetings:** Calling the employee into a meeting and dismissing them on the spot without prior notice of the purpose of the meeting - **Denying a support person:** Refusing the employee's request to have a support person present during the termination discussion - **Predetermined outcome:** Going through the motions of a process where the decision to dismiss has already been made In _Crozier v Palazzo Corporation Pty Ltd_ (2000) 98 IR 137, a Full Bench of the Australian Industrial Relations Commission held that where a dismissal is effected in a manner that is "unnecessarily harsh, humiliating or insensitive," it may be unfair even where the reason for dismissal is valid. This principle has been consistently applied by the FWC. These process failures also feature among the [common termination mistakes](/article/employment-law-employer-mistakes) we see employers make across the board. ## Serious Misconduct: When Summary Dismissal Is Justified An employer may dismiss an employee without notice for serious misconduct as defined in Regulation 1.07 of the Fair Work Regulations 2009. Serious misconduct includes: - Wilful or deliberate behaviour inconsistent with the continuation of the employment contract - Conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer's business - Theft, fraud, assault or sexual harassment - Being intoxicated at work Even in serious misconduct cases, the FWC still expects the employer to have conducted a reasonable investigation and given the employee an opportunity to respond before dismissing. ## The Small Business Fair Dismissal Code Employers with fewer than 15 employees can rely on the Small Business Fair Dismissal Code under s 388. If the employer has followed the Code, the dismissal is deemed to be fair. The Code requires that the employer genuinely believed the employee's conduct was sufficiently serious to justify immediate dismissal, or alternatively, that the employer gave the employee a warning and a reasonable opportunity to improve before terminating. ## Remedies: Reinstatement and Compensation The primary remedy for unfair dismissal is reinstatement (s 391). In practice, reinstatement is ordered in only a small minority of cases - where the employment relationship has broken down, it is usually not appropriate. The more common remedy is compensation, capped at 26 weeks' pay (s 392). Compensation is calculated by reference to the remuneration the employee would have received but for the dismissal, less any income earned or reasonably expected to be earned from other employment. ## General Protections: The Alternative Claim Employees who are not eligible for unfair dismissal (for example, because they earn above the high income threshold or have not completed the minimum employment period) may be able to bring a general protections claim under Part 3-1 of the Fair Work Act. General protections claims are not subject to the same eligibility requirements and are not capped at 26 weeks' compensation. However, the employee must prove that the dismissal was for a prohibited reason - such as exercising a workplace right, discrimination or temporary absence due to illness. The reverse onus of proof under s 361 means that once the employee establishes that a protected attribute or workplace right existed, it is presumed that the employer acted for that reason unless the employer proves otherwise. ## Conclusion Unfair dismissal claims are won and lost on process. Even where the employer has a strong substantive reason for termination, a failure to follow a fair procedure can result in a finding of unfairness and a compensation order. For employers, the cost of getting the process right before terminating is always less than the cost of defending an unfair dismissal claim after the fact. For employees, understanding the s 387 criteria is essential to assessing whether a claim is worth pursuing. Astris Law's employment team advises employers and employees on termination processes, unfair dismissal defence and general protections claims. ![Jamie Nuich, Legal Practitioner Director at Astris Law](/images/jamie-nuich-portrait.jpg) ### [Jamie Nuich](/attorney/jamie-nuich) Legal Practitioner Director - Admitted as a Solicitor of the Supreme Court of Queensland - Admitted as a Solicitor of the High Court of Australia - 15+ years advising directors on commercial law, litigation, regulatory investigations and workplace matters Jamie is the founder and Legal Practitioner Director of Astris Law. She has acted first-hand for directors in urgent injunction applications, shareholder disputes, ASIC prosecutions and regulator-led investigations across Federal and State jurisdictions. She is a solicitor advocate who runs her own applications and trials where appropriate, so clients keep continuity from first advice through to hearing. Commercial Litigation Corporate & Commercial Regulatory & Compliance Employment & Workplace Anti-Money Laundering (AML/CTF) Disciplinary & Professional Conduct [LinkedIn](https://www.linkedin.com/in/jamienuich/)[QLS Register of Solicitors](https://www.qls.com.au/register-of-solicitors/jamie-leanne-nuich)[You and the Law directory](https://www.youandthelaw.com.au/organisation/98611/astris-law-pty-ltd)[Astris Law profile](/attorney/jamie-nuich) Share [](https://www.linkedin.com/sharing/share-offsite/?url=https%3A%2F%2Fwww.astrislaw.com%2Farticle%2Femployment-termination-unfair-dismissal "Share on LinkedIn")[](https://twitter.com/intent/tweet?url=https%3A%2F%2Fwww.astrislaw.com%2Farticle%2Femployment-termination-unfair-dismissal&text=Unfair%20Dismissal%20in%20Australia%3A%20What%20the%20Fair%20Work%20Commission%20Actually%20Considers "Share on X")[](https://www.facebook.com/sharer/sharer.php?u=https%3A%2F%2Fwww.astrislaw.com%2Farticle%2Femployment-termination-unfair-dismissal "Share on Facebook")[](mailto:?subject=Unfair%20Dismissal%20in%20Australia%3A%20What%20the%20Fair%20Work%20Commission%20Actually%20Considers&body=The%20Fair%20Work%20Commission%20decides%20hundreds%20of%20unfair%20dismissal%20claims%20every%20year.%20Whether%20the%20dismissal%20was%20harsh%2C%20unjust%20or%20unreasonable%20depends%20on%20specific%20criteria%20in%20s%20387%20of%20the%20Fair%20Work%20Act%20-%20and%20the%20cases%20show%20that%20process%20matters%20as%20much%20as%20the%20reason%20for%20termination.%0A%0Ahttps%3A%2F%2Fwww.astrislaw.com%2Farticle%2Femployment-termination-unfair-dismissal "Share on Email") This article is for general information purposes only and does not constitute legal advice and should not be relied on as such. 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