Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act) provides national system employees with the right to bring an unfair dismissal claim if their employment is terminated by their employer. However, certain employees are excluded from the right to bring an unfair dismissal claim, and certain types of dismissals may not be the subject of such a claim. See Unfair dismissal: who can/can’t bring a claim?

An unfair dismissal claim cannot proceed if the employee’s dismissal was:

• a “genuine redundancy” (see Unfair dismissal: Genuine redundancy); or

• effected in accordance with the Small Business Fair Dismissal Code (see Unfair dismissal: Small Business Fair Dismissal Code).

A dismissed employee’s unfair dismissal claim will succeed if the employee can establish that the dismissal was “harsh, unjust or unreasonable”. This involves consideration of whether:

• the employer had a “valid reason” for dismissal relating to the employee’s capacity or conduct (see Unfair dismissal: Valid reason for dismissal); and

• the employer accorded the employee “procedural fairness” in the process leading to the dismissal (see Unfair dismissal: Procedural fairness).

Unfair dismissal applications under Part 3-2 of the FW Act are lodged with, and determined by, the Fair Work Commission (FWC) (formerly Fair Work Australia (FWA)). See Unfair dismissal: FWC process for resolving claims.

A successful unfair dismissal application may result in the FWC ordering a remedy to the dismissed employee, ie reinstatement and/or compensation. See Unfair dismissal: Remedies.

The termination of an employee’s employment could result in an application by the dismissed employee under the “unlawful termination” provisions in the FW Act. While these provisions have broader application than the unfair dismissal provisions, an employee cannot bring both types of application simultaneously. Further, the ability of employees to bring unlawful termination applications is limited by the operation of the “general protections” provisions in Pt 3-1 of the FW Act. See Unlawful termination provisions.

An employee who is dismissed for reason of redundancy will have rights to redundancy pay under the National Employment Standards in Pt 2-2 of the FW Act. See NES provisions: redundancy pay.