Advocacy Services
Unfair Dismissal
What is unfair dismissal
Dismissal
‘Dismissal’ means the employer telling the employee they no longer have a job.
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For example, the employer may:
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fire an employee with or without warning for their behaviour
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fire an employee because they are not performing their job to the level required
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tell the employee their position is redundant now or on a future date.
In some cases, if the employer's behaviour forces an employee to resign (called constructive dismissal), that might also be a dismissal.
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If your are a contractor or have been 'mobilised' by a labour hire company, and you are told you no longer are working on that site, this is NOT dismissal, as you still are engaged by the labour hire company who will likely redeploy you. However, being removed from site as a contractor, in some cases can still qualify as an 'adverse action' under the Fair Work Act or 'detriment' under the Coal Mining Safety and Health Act 1999 (Qld).
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Unfair
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A dismissal is not always unfair. In some situations, it is fair to end an employee's employment.
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When an employer dismisses an employee, the law says that they:
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should not dismiss an employee if it is harsh, unjust or unreasonable
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should not make an employee redundant if it is not a genuine redundancy
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should follow the Small Business Fair Dismissal Code (if they are a small business).
The legal definition is in section 385 of the Fair Work Act 2009.
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Examples of ‘harsh’ dismissal
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the dismissal is an extreme response to the situation
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the dismissal has a very big ('disproportionate') impact on the employee’s economic and personal situation.
Example of ‘unjust’ dismissal
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the employee is not guilty of the action or behaviour the employer used as the reason to dismiss them.
Example of ‘unreasonable’ dismissal
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the evidence does not support the decision to dismiss the employee.
Next steps
If you are an employee and you think your dismissal meets the definition of ‘unfair’, use the checklist. This helps you understand if you meet the criteria and are ready to apply for unfair dismissal.
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QCMA Representation
Filing for an unfair dismissal can be technical however the systems has been designed to make the process as easy as possible for employees. The Fair Work Commission has several purposes and one of them is to minimise the amount of claims that enter the court system, which is under-resourced. This might mean you don't get the result you are seeking, as the Fair Work Commission does not represent you and is not your advocate or representative. For some companies, paying you an additional few weeks of your salary is possibly simply a cost of doing business and this in the long run, can lead to erosion of workers rights and humans rights.
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Some Queensland coal mine workers have been advised that they are better to go the pathway of an unfair dismissal, when in fact, their claim is a general protections claim. Learn more about what a general protection claims is here. By simply filing an unfair dismissal claim, and not the general protections claim, the true data around the amount of violations occurring against worker's protected workplace rights is not collected or witnessed. This is not good long term for worker rights and it prevents repeat offenders from being held accountable and receiving increased penalties from the courts. This means there is less deterrent to continue the violations of worker rights.
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Representation can be expensive. In one case, a coal mine worker paid over $12,000 in legal fees for a Fair Work process and still ended up taking the matter to court. QCMA has a range of options for Queensland coal mine workers and this includes access to fixed-cost options to ensure you don't pay excessive fees.
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The value of having a paid agent includes not having to advocate for yourself when mentally fatigued already from poor treatment, having someone on your side who is familiar with how Fair Work mediations or conferences are conducted, and having someone who is familiar with the formula Fair Work uses calculates the final compensation.
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Unfair dismissal important facts
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If the Commission finds a dismissal was unfair (‘harsh, unjust or unreasonable’), it may order compensation. An employee can only receive compensation for lost income ('remuneration'). An employee does not always receive compensation, even if the dismissal was unfair. Before the Commission can order compensation, they must decide if the employer should give the employee their job back (reinstatement).
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Reasons why the Commission might not order reinstatement:
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the business no longer operates
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the employee cannot work because of illness or injury
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the employer and employee cannot work together as their relationship has broken down
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the employer would probably dismiss the employee again.
Note: Fair Work Commission cannot legally order compensation for reasons such as pain and suffering, shock, distress, hurt or humiliation.
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Median compensation for unfair dismissal
It is important to know that most employees only receive a small amount of compensation for unfair dismissal. The median is between 5 – 7 weeks pay. Less than 0.4% of applicants receive the maximum limit (the
compensation cap) that the Commission can order an employer to pay.
The maximum they can order is the lower of these 2 amounts:
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half of the employee’s annual wage OR
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the compensation cap, which is $87,500 for 2024-25 and changes on 1 July each year.
Fair Work Commission may reduce the amount of compensation if they find:
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the employee did not suffer any financial loss from the dismissal
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the employee did not accept a new role with the same pay (lack of effort to replace income)
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the employee deserves a lower amount because of bad behaviour ('misconduct').
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The employee is NOT expected to:
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Sell possessions to pay for living costs
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Cover the cost of retraining to secure new income
The way compensation is worked out is complex. For full details of what Fair Work must consider, see The formula to work out compensation. This considers the rules in section 392 of the Fair Work Act 2009.
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(Source: Fair Work Commission)
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