Unfair Dismissal & Workplace Discrimination FAQs

If you have been unfairly dismissed or sacked by your employer, or you were forced to resign because of something your employer did, you may be able to make an application to the Fair Work Commission for reinstatement (getting your job back) or compensation. This is called an unfair dismissal claim.

Your dismissal may be considered unfair if:

• you were dismissed, and
• your dismissal was harsh, unjust or unreasonable, and
• your dismissal was not a case of genuine redundancy, and
• if you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.

It is important to understand that the Commission will not investigate the circumstances of your dismissal. If you make an unfair dismissal claim and a hearing is held you will need to provide evidence to the Commission to show that your dismissal was unfair.

Only a Commission Member can officially decide whether or not your dismissal was unfair.

Redundancy happens when an employer either:

• does not need an employee’s job to be done by anyone; or
• becomes insolvent or bankrupt.

Redundancy can happen when the business:

• introduces new technology (eg. the job can be done by a machine);
• slows down due to lower sales or production;
• closes down;
• relocates interstate or overseas;
• restructures or reorganises because a merger or takeover happens.

A genuine redundancy is when:

• the person’s job does not need to be done by anyone;
• the employer followed any consultation requirements in the award, enterprise agreement or other registered agreement.

When an employee’s dismissal is a genuine redundancy the employee is not able to make an unfair dismissal claim.

A dismissal is not a genuine redundancy if the employer:

• still needs the employee’s job to be done by someone (eg. hires someone else to do the job);
• has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement; or
• could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

Unlawful workplace discrimination occurs when an employer takes adverse action against a person who is an employee or prospective employee because of the following attributes of the person:

• race;
• colour;
• sex;
• sexual orientation;
• age;
• physical or mental disability;
• marital status;
• family or carer’s responsibilities;
• pregnancy;
• religion;
• political opinion;
• national extraction or social origin.

Where an investigation finds that the employer has (or had) discriminatory practices that are linked to adverse actions for employees or prospective employees, the Fair Work Ombudsman may take enforcement action.

Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.

Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

Examples of behaviour, whether intentional or unintentional, that may be workplace bullying if they are repeated, unreasonable and creates a risk to health and safety include but are not limited to:

• abusive, insulting or offensive language or comments;
• unjustified criticism or complaints;
• deliberately excluding someone from workplace activities;
• withholding information that is vital for effective work performance;
• setting unreasonable timelines or constantly changing deadlines;
• setting tasks that are unnecessary below or beyond a person’s skill level;
• denying access to information, supervision, consultation or resources to the detriment of the worker;
• spreading misinformation or malicious rumours;
• changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

There are a number of avenues you can pursue if you believe your workplace rights have been infringed.

You can lodge a complaint with the Fair Work Ombudsman (FWO) when you believe your workplace rights have been infringed.

A complaint can be lodged in two ways:

• by post – to obtain a hard-copy complaint form contact the FWO, or download the form;
• in person – at any of the FWO’s offices around Australia.

The FWO can investigate allegations of infringements of the workplace rights provisions. Where identified, the FWO can initiate legal action for penalties of up to $12,600 for an individual, or $63,000 for a corporation.

The Fair Work Commission (FWC) can also deal with alleged infringements of the workplace rights provisions.

There are two main types of applications:

• disputes – if you have not been dismissed, but allege that there has been some other infringement of the workplace rights provisions, you may make an application to the FWC to deal with the dispute;
• dismissals – if you believe you have been dismissed and allege that your dismissal was in infringement of the workplace rights provisions, you should make an application to the FWC to deal with the dismissal in the first place. This application must be lodged within 21 days of the dismissal taking effect.

Australia has laws governing employment at both a state, territory and federal level that cover minimum terms and conditions, work health and safety, privacy, discrimination, superannuation, long service leave and other matters.

The terms and conditions of employment and industrial relations obligations of most employers are regulated at the federal level under the system established by the Fair Work Act 2009 (Cth). This federal legislation has effectively displaced a myriad of state laws. However, certain employment-related matters such as occupational health and safety, workers compensation, long service leave, declaration of public holidays, and equal opportunity continue to be regulated at the state and territory level.

All people working in Australia under relevant Commonwealth workplace laws are entitled to general workplace protections.

The Fair Work Act 2009 (Cth) provides protections of certain rights, including:

• workplace rights;
• the right to engage in industrial activities;
• the right to be free from unlawful discrimination;
• the right to be free from undue influence or pressure in negotiating individual arrangements.

These rights are protected from certain unlawful actions, including (but limited to):

• adverse action;
• coercion;
• misrepresentations;
• undue influence or pressure in relation to:
• individual flexibility arrangements under modern awards and enterprise agreements;
• guarantee of annual earnings;
• deductions from wages.