Australian employees are protected from unfair dismissal pursuant to the Fair Work Act 2009 (Cth). This Act promotes economic growth and the prosperity of Australia’s future.

Claiming an unfair dismissal

If your salary is under the high income threshold, and you have been working for your employer a minimum of 12 months in a small business, you are entitled to protection under the Fair Work Act 2009 (Cth). The high income threshold is currently $145, 400 as of July 1 of 2018.

What constitutes a small business employer?

A small business employer is one who employs fewer than 15 employees at the time of the dismissal. However, this figure does not include casual employees who are not working consistent hours.

The Small Business Fair Dismissal Code

However, The Fair Work Commission may take into account different factors. Initially, The Commission will consider the Small Business Fair Dismissal Code before deciding if your dismissal was ‘harsh, unjust or unreasonable.’ If The Commission has evidence that your employer is following the Code in a manner which is consistent with the Code’s requirements, your dismissal will be deemed as fair.

The Small Business Fair Dismissal Code has the following requirements; giving notice of your dismissal, having reasonable belief that you engaged in serious misconduct (only for summary dismissals) and if you received any prior warnings due to inacceptable performance or manner.

This is clear in Jingmin Zeng v Vectus Biosystems Ltd [2015] FWC 5536 where Dr Zeng’s dismissal was consistent with the Small Business Fair Dismissal code which meant that the dismissal was fair. They did not consider if his dismissal was ‘harsh, unjust or unreasonable.’

If you need any assistance with your dismissal or need clarification whether your employer is a small business, contact JFMLAW on 02 9331 0266 for information.

For more information on unfair dismissal: Fair Work Ombudsman – Unfair Dismissal 
Fair Work Act 2009 (Cth) S 23, 121 and 123
For further reading of the Small Business Fair Dismissal Code: Small Business Fair Dismissal Code