Fired Without Warning in Australia: Unfair Dismissal Guide

What are the main employment laws and regulators in Australia?

The main employment laws in Australia are the Fair Work Act 2009 (Cth), state and territory work health and safety laws, and anti-discrimination legislation. Key regulators include the Fair Work Commission, Fair Work Ombudsman, Workplace Health and Safety regulators in each state and territory, and federal and state human rights commissions.

Key legislation

• Fair Work Act 2009 (Cth) Sets:
  • National Employment Standards (NES)
  • Unfair dismissal and general protections (adverse action) rules
  • Enterprise bargaining and industrial action framework
  • Modern awards and minimum wage system
• Work health and safety (WHS) laws Mostly based on harmonised model WHS laws:
  • Work Health and Safety Act 2011 (NSW, Qld, ACT, NT, SA, Tas)
  • Occupational Safety and Health Act 1984 (WA) and WHS Act 2020 (WA transition)
  • Occupational Health and Safety Act 2004 (Vic)
• Anti-discrimination and human rights laws
  • Federal: Sex Discrimination Act 1984, Racial Discrimination Act 1975, Disability Discrimination Act 1992, Age Discrimination Act 2004, Fair Work Act general protections
  • State and territory Equal Opportunity or Anti-Discrimination Acts (for example, Equal Opportunity Act 2010 (Vic))
• Other key laws
  • Superannuation Guarantee (Administration) Act 1992
  • Long service leave legislation in each state and territory
  • Privacy Act 1988 for handling employee records in some contexts

Key regulators and what they do

• Fair Work Commission (FWC)
  • Handles unfair dismissal, general protections, bullying and sexual harassment at work applications
  • Approves enterprise agreements and sets modern awards and minimum wages
• Fair Work Ombudsman (FWO)
  • Investigates underpayments and workplace complaints
  • Can issue compliance notices, infringement notices and commence court proceedings for civil penalties
• State and territory WHS regulators
  • SafeWork NSW, WorkSafe Victoria, Workplace Health and Safety Queensland, SafeWork SA, WorkSafe WA, WorkSafe Tasmania, NT WorkSafe, WorkSafe ACT
  • Investigate accidents and unsafe practices and can prosecute for WHS breaches
• Human rights and anti-discrimination bodies
  • Australian Human Rights Commission (AHRC)
  • State/territory equal opportunity or anti-discrimination commissions and tribunals

Who is an employee vs a contractor in Australia?

Whether a worker is an employee or a contractor in Australia depends on the actual working relationship, not just the label in the contract. Courts look at factors like control, ability to delegate, who provides tools and equipment, and whether the worker carries business risk.

Why the distinction matters

• Employees are entitled to NES rights, award or enterprise agreement minimums, unfair dismissal protection (if eligible), superannuation and leave.
• Contractors usually manage their own tax, super and insurance and generally do not get NES or award benefits.
• Misclassification can lead to:
  • Backpay for wages, overtime, penalties and leave
  • Unpaid superannuation plus ATO penalties
  • Civil penalties under the Fair Work Act

Key factors used by Australian courts

No single factor is decisive. Courts and the Fair Work Ombudsman typically weigh:

• Control: Does the business control how, when and where the work is done?
• Integration: Is the person part of the business, or running their own business servicing the client?
• Ability to delegate: Can the worker send someone else (subject to approval) to do the work?
• Provision of tools and equipment: Who supplies and maintains tools, vehicles, equipment and uniforms?
• Risk and reward: Does the worker bear commercial risk, and can they profit from managing costs or efficiency?
• Payment method: Are they paid per hour, per shift or salary (employee) vs per project or per quote (contractor)?
• Tax and super: Are PAYG tax and super deducted like an employee, or does the worker invoice with an ABN?

Common red flags for misclassification

• Labelled a "contractor" but:
  • Only works for one business, using that business's systems
  • Must personally perform the work, cannot delegate
  • Uses the business's tools and wears its uniform
  • Is subject to rosters, performance management and policies as if an employee
• Casual workers engaged for years on regular predictable hours without proper casual loading or conversion rights being managed.

What minimum rights do employees have under Australian law?

Most employees in Australia are covered by the National Employment Standards, which provide 11 minimum entitlements including maximum weekly hours, flexible work requests, leave, notice and redundancy. These rights cannot be reduced by contracts or agreements, although employers can always provide better conditions.

National Employment Standards (NES)

The NES apply to national system employees, which covers almost all private sector workers.

• Maximum weekly hours: 38 ordinary hours per week for full-time employees, plus reasonable additional hours.
• Requests for flexible working arrangements: For eligible employees (for example, parents, carers, older employees) with at least 12 months service.
• Parental leave: Up to 12 months unpaid leave, with a right to request an extra 12 months, for eligible employees.
• Annual leave: 4 weeks paid annual leave per year of service for full-time, pro rata for part-time (shiftworkers may get 5 weeks).
• Personal/carer and compassionate leave: 10 days paid personal/carer leave per year for full-time (pro rata for part-time), plus 2 days unpaid carer leave and 2 days compassionate leave per occasion.
• Community service leave: Unpaid leave for emergency services and jury service, with some paid jury service entitlements.
• Long service leave: Based on state and territory legislation or relevant pre-modern awards.
• Public holidays: Paid days off on public holidays, or penalty rates if required to work under an award or agreement.
• Notice of termination and redundancy pay: Minimum notice or payment in lieu, and redundancy pay for eligible employees based on length of service.
• Fair Work Information Statement: Must be given to new employees.
• Casual Employment Information Statement: Must be provided to casual employees.

Who is not fully covered by the NES?

• Some state public sector and local government employees in certain states (for example, NSW and Qld) may fall outside the national system and instead be covered by state industrial laws.
• Contractors, volunteers and some trainees are not NES employees, although other protections may still apply (for example WHS, discrimination).

How are pay, hours and leave entitlements set in Australia?

Pay, hours and leave entitlements in Australia are usually set by a combination of the Fair Work minimum wage, modern awards or enterprise agreements, and the NES. Employers must always apply the most beneficial combination of these instruments and any individual contract.

Sources of minimum pay and conditions

• National minimum wage: Set annually by the Fair Work Commission. As of 1 July 2024, it is $915.90 per week or $24.08 per hour for full-time adult employees (check current rates as they change each year).
• Modern awards:
  • Industry or occupation specific instruments (for example, Hospitality Industry (General) Award, Clerks - Private Sector Award)
  • Set classifications, pay rates, penalty rates, overtime, allowances and breaks
• Enterprise agreements:
  • Negotiated at the workplace level and approved by the FWC
  • Must leave employees "better off overall" than the relevant award
• Employment contracts:
  • Can provide higher pay or extra benefits but cannot lawfully undercut NES or award minimums

Typical cost items for employers (Australia)

Working hours and rostering

• Full-time: Usually 38 ordinary hours per week.
• Part-time: Agreed regular pattern of hours, less than 38 per week, with pro-rata entitlements.
• Casual: No guaranteed hours, engaged as required, but regular and systematic casuals may gain certain rights (for example, requests for conversion to permanent).
• Reasonable additional hours: Employers can request, but must assess reasonableness (workload, family commitments, health and safety, compensation).

Leave entitlements - practical points

• Annual leave and personal leave accrue progressively and generally must be recorded and shown on payslips.
• Many awards require:
  • Penalty rates for weekend and public holiday work
  • Minimum engagement periods (for example, 3 hours)
  • Specific break entitlements for shifts of certain lengths
• Employers must keep accurate records for 7 years, or risk reverse onus in underpayment disputes and penalties from the FWO.

How do unfair dismissal and redundancies work in Australia?

Unfair dismissal in Australia occurs when an eligible employee is dismissed in a harsh, unjust or unreasonable way, and they usually have 21 days to apply to the Fair Work Commission. Redundancy is lawful if the job is genuinely no longer needed and the employer consults, explores redeployment and pays any required redundancy entitlements.

Who can claim unfair dismissal?

• Employee must have completed the minimum employment period:
  • 6 months for employers with 15 or more employees
  • 12 months for small business employers (fewer than 15 employees)
• Employee must earn less than the high income threshold (unless covered by an award or enterprise agreement).
• Casual employees must have regular and systematic work and a reasonable expectation of ongoing employment.

Key time limits and costs

(Fees change each financial year - always check the FWC website for current rates.)

How unfair dismissal claims work - step by step

1. The employee lodges an application with the FWC and serves it on the employer.
2. The employer files a response within the required timeframe (usually 7 days).
3. The FWC schedules a telephone conciliation conference to explore settlement.
4. If unresolved, the matter proceeds to a conference or hearing where the Commission decides whether the dismissal was unfair and, if so, what remedy to award.

Possible remedies

• Reinstatement to the former position or similar role, with backpay in some cases.
• Compensation calculated with reference to the employee's remuneration and capped at the lesser of:
  • 26 weeks pay; or
  • Half the high income threshold.
• Non-financial terms often negotiated in settlement, such as:
  • Statement of service or agreed reference wording
  • Mutual non-disparagement clauses

What is a genuine redundancy?

Under the Fair Work Act, a redundancy is "genuine" if:

• The employer no longer requires the job to be done by anyone due to changes in operational requirements.
• The employer has complied with any consultation obligations in an applicable award or enterprise agreement.
• It was not reasonable to redeploy the employee within the employer's enterprise or an associated entity.

Redundancy entitlements

• Redundancy pay applies to:
  • Employees (other than some casuals) who have at least 12 months service
  • Employers with 15 or more employees (small business may be exempt)
• Amounts range from 4 to 16 weeks pay depending on service under the NES, plus any better entitlements under an award, agreement or contract.
• Notice of termination (or payment in lieu) still applies.

What are the rules on workplace bullying, discrimination and harassment in Australia?

Bullying, discrimination and harassment are prohibited in Australian workplaces, and employees can seek remedies through the Fair Work Commission, human rights bodies or courts. Employers must take reasonable steps to prevent and respond to such conduct or risk legal and reputational consequences.

Bullying at work

Under the Fair Work Act, bullying occurs when:

• A person or group repeatedly behaves unreasonably towards a worker or group of workers, and
• The behaviour creates a risk to health and safety.

Reasonable management action carried out in a reasonable way is not bullying.

Examples of bullying

• Repeated insults, humiliation or unjustified criticism
• Deliberately excluding someone from work activities
• Spreading malicious rumours
• Unreasonable work demands or constantly changing expectations to set someone up to fail

Discrimination

Workplace discrimination occurs when an employee or job applicant is treated less favourably because of a protected attribute, such as:

• Race, colour, ethnic or national origin
• Sex, sexual orientation, gender identity or intersex status
• Pregnancy, marital or relationship status, family or carer responsibilities
• Age
• Disability or impairment
• Religious or political belief or activity (under some state laws)

Sexual harassment

Sexual harassment is unlawful under federal and state laws and, from 2021 onwards, is also expressly covered in the Fair Work Act. It includes any unwelcome sexual advance, request for sexual favours or other unwelcome conduct of a sexual nature where a reasonable person would expect the victim to feel offended, humiliated or intimidated.

Examples of sexual harassment

• Unwanted touching, hugging or kissing
• Sexual comments, jokes, emails or messages
• Repeated asking for dates after refusal
• Displaying or sending sexually explicit material

Where can workers make complaints?

• Internal processes: HR, managers, grievance and complaint procedures.
• Fair Work Commission:
  • Anti-bullying orders to stop bullying
  • Sexual harassment at work applications
• Australian Human Rights Commission or state bodies:
  • Discrimination and sexual harassment complaints, leading to conciliation or, in some cases, Federal Court or Federal Circuit and Family Court proceedings
• Fair Work Ombudsman: Where discrimination relates to workplace rights or protected attributes under the Fair Work Act.

How are workplace health and safety obligations enforced in Australia?

Workplace health and safety obligations are enforced by state and territory regulators under WHS or OHS laws, which impose primary duties on PCBUs (persons conducting a business or undertaking). Breaches can lead to improvement notices, prohibition notices and prosecutions with substantial fines and, in serious cases, imprisonment.

Key WHS duties

• Primary duty of care: PCBUs must ensure, so far as reasonably practicable, the health and safety of workers and others affected by their operations.
• Officers (for example, directors) must exercise due diligence to ensure the PCBU complies with its duties.
• Workers must take reasonable care for their own health and safety and comply with reasonable instructions and policies.

Practical WHS obligations

• Identify and manage risks through hazard identification, risk assessments and controls.
• Provide safe systems of work, including:
  • Training and supervision
  • Safe equipment and maintenance
  • Procedures for high risk activities
• Consult with workers and health and safety representatives.
• Notify the regulator of notifiable incidents (for example, serious injury, death, dangerous incidents) and preserve the incident site as required.

Regulatory actions and penalties

• Improvement notices requiring issues to be fixed by a deadline.
• Prohibition notices stopping unsafe activities immediately.
• Infringement notices and prosecutions for breaches, with maximum penalties often in the millions of dollars for corporations and significant fines or imprisonment for individuals in serious or reckless cases.

How are employment disputes resolved in Australia?

Most employment disputes in Australia are resolved through internal workplace processes, conciliation at the Fair Work Commission or negotiations, with only a small proportion proceeding to court or tribunal hearings. The best pathway depends on the type of dispute, the applicable law and the remedy sought.

Common dispute pathways

• Internal resolution:
  • Informal discussion with managers or HR
  • Use of company grievance procedures and workplace investigations
• Fair Work Commission:
  • Unfair dismissal, general protections, bullying, sexual harassment, agreement or award disputes
  • Emphasis on early conciliation and settlement
• Fair Work Ombudsman:
  • Underpayment and record keeping disputes
  • Compliance and enforcement, including litigation
• Human rights and discrimination bodies:
  • Conciliation of discrimination and harassment complaints
  • Certification to the Federal Court or state tribunals if unresolved
• Civil courts and tribunals:
  • Serious breach of contract, significant underpayment, discrimination or WHS cases

Typical timelines

Settlement and confidentiality

• Most disputes settle through written deeds of settlement and release.
• Common terms include:
  • A lump sum payment
  • Mutual release of claims
  • Confidentiality and non-disparagement clauses
  • Return of property and IP protections
• Employers should obtain legal drafting to ensure enforceable and compliant terms.

When should you hire an employment lawyer in Australia?

You should hire an employment lawyer in Australia when a decision or dispute carries significant legal, financial or reputational risk, or when strict time limits apply. This includes dismissals, redundancies, serious misconduct allegations, discrimination or bullying complaints and any claim involving the Fair Work Commission, FWO or human rights bodies.

For employers

• Before dismissing or disciplining employees:
  • To structure warnings, investigations and show cause processes
  • To reduce unfair dismissal and general protections risk
• During restructuring and redundancy:
  • To design a lawful selection process and consultation plan
  • To calculate correct notice, redundancy and leave payouts
• For complex contracts and policies:
  • Executive contracts, restraints, confidentiality, bonus schemes
  • Workplace policies, codes of conduct, WHS and EEO policies
• When underpayment or FWO issues arise:
  • To audit award coverage and pay practices
  • To negotiate enforceable undertakings or settlements

For employees

• After you are dismissed:
  • If you think the dismissal was unfair, discriminatory or retaliatory
  • Remember the 21 day deadline for many FWC applications
• If you are facing a performance or misconduct process:
  • To understand your rights and prepare responses
  • To negotiate exit packages if appropriate
• If you experience bullying, discrimination or harassment:
  • To map out internal and external complaint options
  • To protect against victimisation for speaking up
• When reviewing complex contracts:
  • Senior roles, bonus and commission arrangements, restraints of trade

What to bring to your lawyer

• Employment contract, position descriptions and any variations.
• Payslips, rosters, timesheets and any relevant correspondence.
• Policies, procedures and any investigation or performance documents.
• Timeline of events with key dates (for example, warnings, meetings, dismissal date).

What practical next steps should employers and employees take?

Employers should audit their compliance with the Fair Work and WHS frameworks and implement clear policies, training and record keeping. Employees should understand their basic rights, keep written records and seek timely advice if something goes wrong.

Next steps for employers

1. Confirm coverage and instruments
   • Identify which modern awards and enterprise agreements apply to your workforce.
   • Check whether your organisation is fully in the national system.
2. Audit pay and conditions
   • Review base rates, loadings, overtime, penalties and allowances against current awards and agreements.
   • Check superannuation and leave accruals and correct use of casual contracts.
3. Update contracts and policies
   • Use written contracts for all staff and ensure they align with awards and NES.
   • Implement or refresh policies on WHS, bullying, discrimination, grievances and performance management.
4. Train managers
   • Provide regular training on lawful performance management, investigations and WHS duties.
   • Ensure managers understand anti-discrimination and sexual harassment obligations.
5. Plan for disputes
   • Develop clear internal complaint and dispute resolution processes.
   • Engage legal support early when issues escalate or regulators become involved.

Next steps for employees

1. Work out your status
   • Clarify if you are a permanent, casual or fixed-term employee or a contractor.
   • Obtain copies of your contract, Fair Work Information Statement and any policies.
2. Check your entitlements
   • Use the Fair Work Ombudsman's Pay and Conditions Tool to check award coverage and minimum rates.
   • Compare payslips with expected wage, penalty, super and leave entitlements.
3. Document issues early
   • Keep records of rosters, hours, performance discussions and any concerning behaviour.
   • Record key dates such as warnings, complaints, and any termination meeting.
4. Use internal processes
   • Raise concerns with your manager or HR in writing where appropriate.
   • Follow grievance or complaint procedures and keep copies of correspondence.
5. Seek timely advice
   • Contact a union, community legal centre or employment lawyer if you face dismissal, underpayment, bullying or discrimination.
   • Act quickly to preserve your rights within FWC and other statutory time limits.