Claims & remedies

Master Builders can provide advice and representation on all termination of employment matters, including any representation before Fair Work Australia (FWA) or other tribunals. This service is included in your membership – there is no extra cost.

The below summary is intended as a guide only; contact Master Builders with any specific questions.

Who can make an unfair dismissal claim?

A person can make an unfair dismissal claim if they:

  • Have completed the minimum employment period
  • Are covered by a modern award (or award-based transitional instrument) or an enterprise agreement (or agreement-based transitional instrument).

If neither of these criteria applies, a person will only be able to bring an unfair dismissal claim if the sum of their annual rate of earnings and any other amounts worked out in accordance with the regulations is less than the high income threshold (which from 1 July 2011 is $118,100, indexed annually).

Casual employees are unable to make an unfair dismissal claim unless they were employed on a regular and systematic basis and they had a reasonable expectation of continuing employment on that basis.

What is the minimum employment period?

Employees must have served the minimum employment period before they can make an unfair dismissal claim.

The minimum employment periods are:

  • One year for employees of a small business. (From 1 July 2009 until 31 December 2010, a small business employer is an employer with less than 15 full-time equivalent employees. From 1 January 2011, the method of calculation will change to less than 15 employees based on a head count of total employees rather than full-time equivalent employees.)
  • Six months if the employer is not a small business.

Small business fair dismissal

The Small Business Fair Dismissal Code describes the steps for a small business employer to follow when dismissing an employee. An employer does not have to follow the code, but if the dismissal is consistent with the code, FWA cannot find the person was unfairly dismissed.

The code has a voluntary checklist that small business employers can complete at the time of dismissal and keep in case an unfair dismissal claim is made.

The checklist contains information such as whether the employee:

  • Was stealing money or goods from the business
  • Committed a serious breach of occupational health and safety procedures
  • Was clearly warned (either verbally or in writing) that he/she was not doing the job properly and that he/she would have to improve his/her conduct or performance, or otherwise be dismissed
  • Was provided with any training or opportunity to develop their skills
  • Voluntarily resigned or abandoned his or her employment.

Download a copy of the Small Business Fair Dismissal Code from the Fair Work Australia website.

Procedures for unfair dismissal claims

An application for FWA to consider an unfair dismissal claim must be made within 14 days of the date of dismissal unless there are exceptional circumstances.

If there are any disputed facts relating to the case, then FWA must conduct a conference or hold a hearing. FWA will take into account the wishes of the parties regarding how the matter is considered, but will only hold a hearing if it is the most effective and efficient way to resolve the matter. Conferences must be held in private.

Remedies for unfair dismissal

If FWA finds that a person has been unfairly dismissed, the primary remedy is reinstatement of the employee, either to the same position or to a different position, provided that the terms and conditions of employment are not less favourable.

In addition, FWA may make an order for the employer to pay the employee an amount for remuneration lost and to maintain continuity of service.

As an alternative to reinstatement, FWA can order the payment of compensation to the person. It must only do so if reinstatement is not appropriate.

FWA will take into account a range of factors in deciding the level of compensation, including the effect of the order on the viability of the employer's business, the length of the person's service with the employer and the amount of any remuneration earned by the person from other employment since the dismissal. The maximum compensation is six months pay.

Read more about unfair dismissal.