Employment FAQs

Employment FAQs

 

Q: What is unfair dismissal?

A dismissal is considered unfair if it is:

  • Harsh, unjust, or unreasonable;
  • Inconsistent with the Small Business Fair Dismissal Code (if applicable); and
  • Not a genuine redundancy.

Q: My employer says my dismissal was a redundancy, but that’s not true. Can I take legal action?

Redundancy is a legal defence for employers in an unfair dismissal claim.
As an employee, your first step is to demonstrate that the dismissal itself was unfair.


Q: When does a dismissal become unfair?

A dismissal may be considered unfair if the employee was not given notice or an opportunity to respond or improve.

Good employment practice includes:

  • Providing verbal and written warnings about unsatisfactory performance or conduct;
  • Giving the employee an opportunity to respond and allowing a support person to attend;
  • Allowing a reasonable timeframe for improvement.

Q: What should I do if I think I was unfairly dismissed?

You should apply to the Fair Work Commission (FWC) within 21 days after your dismissal takes effect.


Q: What can I get if I am successful with my unfair dismissal application?

The FWC may order either:

  • Reinstatement of your position, or
  • Monetary compensation.

The median compensation is typically around 5 to 7 weeks’ wages.


Q: What happens after I submit my unfair dismissal (UD) application to the FWC?

Once your application is submitted:

  • The FWC will notify your employer, who must respond within the required timeframe.
  • In most cases, the matter will be listed for a conciliation conference.
  • If the matter doesn’t settle, it will proceed to a determinative conference or hearing, where a Commission Member will make a decision.

Q: What is “general protections”?

You may be protected under general protections if you are dismissed, demoted, or overlooked for promotion because of:

  • Exercising your workplace rights (e.g. taking leave);
  • Your age, sex, disability, or another discriminatory reason; or
  • Being away from work due to illness or injury.

Other grounds include coercion, undue influence or pressure, or misrepresentation affecting workplace rights.


Q: How long do I have to make a general protections application to the FWC?

  • If involving dismissal: within 21 days after the dismissal takes effect.
  • If not involving dismissal: within 6 years.

Q: What happens after I submit a general protections (GP) application to the FWC?

For both dismissal and non-dismissal matters:

  • The FWC will notify your employer, who must respond within the given timeframe.
  • If the employer agrees to proceed, the Commission will hold a conference.
  • If the matter does not settle, the FWC will issue a certificate, and either party may then take the case to court.

Q: What is the difference between an employee and a contractor?

An employee works directly for an employer and receives entitlements such as annual leave and sick leave.
A contractor operates independently, often for multiple clients, and does not receive such entitlements.

Factors that help determine whether someone is an employee or contractor include:

  • The level of control the business has over how work is performed;
  • Who carries financial risk and responsibility;
  • Who provides tools and equipment;
  • Whether the worker can delegate or subcontract work;
  • How work hours are set;
  • Whether there is an expectation of ongoing work.

Q: I think I’m underpaid — what should I do?

If you believe you’ve been underpaid:

  1. Check the relevant Award or enterprise agreement to calculate how much you’re owed.
  2. You can contact the Fair Work Ombudsman for assistance.

In general, underpayment claims cannot relate to periods more than 6 years before court proceedings are commenced.


Q: Can my employer monitor my social media?

It depends.

While employees have a right to privacy, they also have responsibilities — for example, avoiding posts that could damage the employer’s reputation or breach the employment contract.

The extent of monitoring may depend on:

  • The content of the social media post;
  • The device used (work or personal); and
  • The terms of your employment contract or workplace policy.

Both privacy and employment laws apply in assessing whether monitoring is lawful or reasonable.

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