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:
- Check the relevant Award or enterprise agreement to calculate how much you’re owed.
- 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.
