What constitutes unfair dismissal? What the Fair Work Commission looks at

Thousands of unfair dismissal applications are lodged each year, with many resolving at conciliation rather than a formal hearing.

Unfair dismissal is a legal issue, not just a workplace dispute. When an employer ends an employee’s employment, the Fair Work Commission assesses whether the dismissal was harsh, unjust or unreasonable under Australia’s employment laws.

An unfair dismissal claim must generally be made within 21 days of dismissal. Understanding exactly what unfair dismissals are and how the legal process works allows you to act quickly, protect your rights, and avoid missing critical deadlines.

What does “harsh, unjust or unreasonable” actually mean?

This is the legal core of unfair dismissal. The Fair Work Commission does not simply ask whether a dismissal was fair in a general sense. It applies a structured test under the Fair Work Act and considers whether the dismissal was harsh, unjust or unreasonable in the circumstances.

Harsh Dismissal

A dismissal may be considered harsh even where there was a valid reason. The Commission looks at the impact on the employee and whether the outcome was proportionate.

It may be harsh if:

• The penalty is disproportionate to the conduct
• The employee had a long and unblemished employment history
• There were mitigating personal circumstances
• The dismissal had severe economic or personal consequences

For example, immediate dismissal for a minor first offence in a small WA business may be viewed as excessive if lesser disciplinary action was available.

Unjust Dismissal

A dismissal may be unjust if the employee was not guilty of the alleged conduct or performance issue.

It may be unjust if:

• The allegation was not properly investigated
• The evidence did not support the conclusion
• The decision was based on incorrect or incomplete facts
• The employee was not given an opportunity to respond

The Commission has stated that a dismissal may be unfair where there is “no valid reason related to the person’s capacity or conduct”.

Unreasonable

A dismissal may be unreasonable if the decision was made without sound, defensible reasoning or without procedural fairness.

It may be unreasonable if:

• The employee was not notified of the concerns
• They were not given a chance to respond
• They were denied a support person in a meeting
• Warnings were not provided where appropriate
• The process was rushed or predetermined

Even where there is a valid reason, a flawed process can lead the Commission to find that the dismissal was unfair. Procedural fairness often determines the outcome.
Understanding how these concepts operate in practice is essential. Each case turns on its facts. The Commission weighs the reason, the process, and the overall circumstances before reaching a decision.

Who can make a claim?

Not every employee can make an unfair dismissal claim. Understanding whether you are eligible is essential before taking further steps. It also helps employers assess risk before a dismissal decision is made.

To make an unfair dismissal application under the Fair Work Act, you must generally:

• Be a national system employee
• Have completed the minimum employment period
• 6 months for most employers
• 12 months if the employer is a small business
• Earn below the high-income threshold, unless you are covered by a modern award or enterprise agreement
• Have been dismissed, rather than resigning voluntarily

Casual employees may qualify if they were employed on a regular and systematic basis and had a reasonable expectation of ongoing employment.

Independent contractors are not eligible to make an unfair dismissal claim. Different rules may apply in cases involving general protections or unlawful termination. For more information, contact our friendly lawyers today.

Time limits: Act promptly

Strict time limits apply to unfair dismissal claims. If you believe you have been unfairly dismissed, you must generally lodge an unfair dismissal application with the Fair Work Commission within 21 days of the dismissal taking effect. This time limit is set under the Fair Work Act and is applied quite strictly.

The 21-day period usually starts from the date your employment ends, not the date you receive your final pay or separation certificate.

Genuine redundancy: When dismissal is not unfair

A common area of confusion is genuine redundancy. Not every job loss will amount to unfair dismissal. If a role is genuinely no longer required, and the correct process is followed, the dismissal may not be considered unfair under the Fair Work Act.

A dismissal is a genuine redundancy if:

• The employer no longer requires the job to be performed by anyone due to operational changes
• The employer has complied with any consultation obligations under a modern award or enterprise agreement
• It was not reasonable to redeploy the employee within the employer’s business or an associated entity

If these requirements are not properly followed, the redundancy may not be genuine and can be challenged as an unfair dismissal. The Fair Work Commission will look closely at whether the role was truly no longer needed, or whether the dismissal was actually for another reason.

Case Example: When a Dismissal Is Not Unlawful

In the recent case of Debus v Condor Energy Services Limited [2022] FedCFamC2G 429, an employer, Condor Energy Services (the Employer) dismissed its accountant prior to completing his probationary period due to improper conduct in the workplace, including obscene language towards colleagues and physically intimidating a colleague.

The former employee, Mr Wayne Debus (the Applicant), subsequently challenged his dismissal by filing a general protections claim alleging that he was unlawfully terminated because of his autism (a proscribed reason).

The Applicant argued that due to his mental health condition, which was exacerbated by his autism disability, his former Employer took adverse action against him by terminating his employment.

The Court ultimately dismissed the Applicant’s case because it found no causal link between his autism and the dismissal, which is a central element to establish an adverse action claim.

Ultimately, the Court found that in the absence of conclusive evidence, the Employer was unaware of the Applicant’s autism and at no point during his brief employment was this disclosed to the Employer.

It was held that it was incumbent on Mr Debus to disclose his medical condition to the Employer, as this could reasonably inhibit his ability to safely perform his role.

Further, the Court rejected evidence provided by the Applicant’s doctor, who submitted that the Applicant’s condition should have been identified by the Employer.

This case is a timely reminder that:

• Employers should provide a reason for dismissal when terminating an employee’s employment (even during the probationary period);
• Employers have a right to enquire about an employee’s medical history if it could impact the employee’s ability to safely perform their role; and
• Employees, whilst jurisdictionally barred from filing an unfair dismissal claim if the minimum employment period has not been satisfied, could still file a general protection claim.

For more information or to discuss how we may be able to assist you, contact our employment law team.

Choose a team that cares

Workplace disputes can feel overwhelming. Whether you believe you have been unfairly dismissed or you are an employer facing a difficult decision, you deserve clear, steady guidance.

At Lotus Legal, we provide practical employment law advice grounded in Western Australia’s legal framework. We take the time to understand your situation, explain your options in plain English, and help you move forward with confidence. No legal jargon. No hidden costs. Just honest, straightforward advice.

If you are considering making an unfair dismissal claim, or you want to ensure your business is handling termination correctly, early advice can make a real difference. Our Perth lawyers are here to support you every step of the way. Reach out to our team for a conversation about your circumstances and how we can help.