Employment & Workplace Disputes FAQs

Many casual employees don't realise they have unfair dismissal rights — here's when they apply:

• Employment was on a regular and systematic basis.
• There was a reasonable expectation of ongoing employment.
• They have completed the minimum employment period of 6 months for large businesses (15 or more employees) or 12 months for small businesses (fewer than 15 employees).

Eligibility depends on the nature and pattern of the casual employment arrangement.

Here's what unfair dismissal actually means under Australian law. Unfair dismissal pertains to terminations that are harsh, unjust, or unreasonable, focusing on the fairness of the dismissal process and reason. Unlawful termination involves dismissals for reasons prohibited by law, such as discrimination or exercising workplace rights. While both address wrongful terminations, they differ in legal criteria and applicable remedies.

To be eligible to file an unfair dismissal claim in Victoria, an employee must:

• Have completed the minimum employment period: 6 months for large businesses (15 or more employees) or 12 months for small businesses (fewer than 15 employees).
• Be covered by the national workplace relations system.
• Not earn above the high-income threshold, unless covered by a modern award or enterprise agreement.

Casual employees may also be eligible if they have been employed on a regular and systematic basis with a reasonable expectation of ongoing employment.

An unfair dismissal application must be lodged with the Fair Work Commission within 21 calendar days from the date the dismissal takes effect. Extensions are granted only in exceptional circumstances, so timely action is crucial.

Remedies for unfair dismissal may include:

• Reinstatement: Returning the employee to their former position.
• Compensation: Monetary payment for lost wages, capped at 26 weeks' pay or half the high-income threshold, whichever is lower.

The Fair Work Commission determines the appropriate remedy based on the circumstances of each case.

The Small Business Fair Dismissal Code provides guidelines for small businesses (fewer than 15 employees) to ensure dismissals are fair. Compliance with the Code offers protection against unfair dismissal claims. Key aspects include:

• Ensuring a valid reason for dismissal related to conduct or capacity.
• Providing warnings for underperformance, except in cases of serious misconduct.
• Allowing the employee an opportunity to respond to concerns.

Adherence to the Code is assessed by the Fair Work Commission in relevant cases.

A dismissal is considered 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 in an applicable modern award or enterprise agreement.
• It was not reasonable to redeploy the employee within the employer's enterprise or an associated entity.

Genuine redundancies are not classified as unfair dismissals.

If you believe you've been unfairly dismissed:

1. Seek Legal Advice: Consult with a legal professional or relevant authority to assess your situation.
2. Gather Evidence: Collect documents and information related to your dismissal.
3. File an Application: Submit an unfair dismissal application to the Fair Work Commission within 21 days of dismissal.

Timeliness and thorough preparation are essential for a successful claim.

In Victoria, a dismissal is deemed unfair if it is harsh, unjust, or unreasonable. This assessment considers:

• Valid Reason: Whether there was a valid reason related to the employee's capacity or conduct.
• Notification: If the employee was informed of the reason.
• Opportunity to Respond: Whether the employee had a chance to respond to the reason.
• Procedural Fairness: The overall fairness of the dismissal process.

Additionally, the Fair Work Commission examines factors such as the employee's length of service and any prior warnings about performance or conduct.

An unlawful dismissal occurs when an employee is terminated for reasons prohibited by law, including:

• Discrimination based on protected attributes such as race, sex, age, disability, or marital status.
• Temporary absence due to illness or injury.
• Membership or non-membership in a trade union.
• Exercising a workplace right, like making a complaint or inquiry regarding employment.

Such dismissals violate the Fair Work Act 2009 and other anti-discrimination laws.

Your employer has real legal obligations to keep you safe at work. These include:

• Implementing and enforcing anti-bullying and anti-discrimination policies
• Providing training to employees on acceptable workplace behavior
• Establishing clear procedures for reporting and addressing complaints
• Taking prompt and appropriate action when issues arise

Failure to fulfill these responsibilities can result in legal consequences for the employer.

Workplace bullying and discrimination are serious — here's what to do if it happens to you:

1. Document the incidents: Keep detailed records of dates, times, locations, and descriptions of the behavior.
2. Review workplace policies: Familiarize yourself with your employer's policies on bullying and discrimination.
3. Report the behavior: Raise the issue with your supervisor, human resources, or a designated contact person.
4. Seek external support: If internal resolution is ineffective, contact external bodies such as WorkSafe Victoria or the Fair Work Commission for assistance.

In Victoria, employees are protected by:

• Equal Opportunity Act 2010 (Vic): Prohibits discrimination based on personal characteristics.
• Fair Work Act 2009 (Cth): Provides protection against adverse action due to discriminatory reasons.

These laws ensure that employees are treated fairly and have avenues for recourse if discrimination occurs.

Protections vary depending on the nature of the volunteer arrangement. Some volunteers may be covered under specific legislation, while others may not. It's advisable for organizations to extend protections to all workers, including volunteers, to promote a safe and inclusive environment.

Workplace bullying can lead to:

• Psychological issues such as stress, anxiety, and depression
• Physical health problems like headaches and sleep disturbances
• Reduced job satisfaction and productivity
• Increased absenteeism

Employers must address bullying to maintain a safe and healthy workplace.

The Fair Work Commission (FWC) can:

• Receive applications for orders to stop bullying
• Investigate claims and hold hearings
• Issue orders to prevent further bullying

However, the FWC does not award compensation; its focus is on stopping the bullying behavior.

Workplace discrimination occurs when an employee is treated less favorably due to personal characteristics such as:

• Age
• Gender
• Race
• Religion
• Disability

Discrimination can manifest in various ways, including:

• Unfair hiring practices
• Denial of training opportunities
• Unjustified dismissal

Both direct and indirect discrimination are unlawful under Victorian law.

Workplace bullying is defined as repeated, unreasonable behavior directed towards an employee or group of employees that creates a risk to health and safety. Examples include:

• Verbal abuse
• Excluding or isolating employees
• Assigning meaningless tasks unrelated to the job
• Deliberately changing work rosters to inconvenience certain employees

It's important to note that reasonable management actions carried out in a fair manner do not constitute bullying.

No, workplace bullying is characterized by repeated unreasonable behavior. However, a single incident can still be serious and may constitute other forms of misconduct, such as harassment or discrimination, which are also unlawful.

Reasonable management actions conducted in a fair manner are not considered bullying. Such actions may include:

• Setting performance goals and deadlines
• Providing constructive feedback
• Implementing organizational changes
• Managing underperformance

The key distinction is that these actions are carried out objectively and respectfully, without intent to harm or humiliate the employee.

Here's what the law actually requires from employers when it comes to workplace safety:

• Provide and maintain a safe working environment without health risks.
• Ensure safe systems of work.
• Provide adequate facilities for employee welfare.
• Offer necessary information, instruction, training, and supervision.
• Monitor employee health and workplace conditions.

These duties are detailed in the OHS Act.

Yes, certain industries such as construction, mining, and manufacturing have additional regulations due to their higher risk profiles. These regulations cover areas like:

• Hazardous substances.
• Manual handling.
• Plant and equipment safety.

Employers in these sectors should consult the relevant OHS regulations for detailed requirements.

WorkSafe Victoria is the state's regulator for workplace health and safety. Its functions include:

• Monitoring and enforcing compliance with OHS laws.
• Providing guidance and advice on safety matters.
• Promoting public awareness about occupational health and safety issues.

Non-compliance can lead to:

• Improvement or prohibition notices issued by WorkSafe inspectors.
• Fines and penalties for breaches of the OHS Act.
• Prosecution for serious offenses, which may result in significant fines or imprisonment.

Details on penalties are available in the OHS Act.

An HSR is an employee elected by their peers to represent them on health and safety matters. HSRs have powers to:

• Inspect the workplace.
• Accompany WorkSafe inspectors during inspections.
• Be consulted on OHS issues.
• Issue Provisional Improvement Notices (PINs) if necessary.

More information is available on the WorkSafe Victoria website.

The main legislation is the Occupational Health and Safety Act 2004, which outlines the duties and responsibilities of employers and employees to ensure a safe working environment.

WorkSafe Victoria offers resources tailored for small businesses, including:

• Guidance documents and checklists.
• Advisory services.
• Workshops and training sessions.

These resources are designed to help small businesses understand and meet their OHS obligations.

Yes, employees must:

• Take reasonable care for their own health and safety.
• Ensure their actions do not adversely affect others.
• Comply with any reasonable instructions from the employer regarding OHS.

These responsibilities are outlined in the OHS Act.

Employees can:

• Report issues to their immediate supervisor or employer.
• Consult with Health and Safety Representatives (HSRs) if available.
• Contact WorkSafe Victoria for advice or to report serious concerns.

Effective communication channels are essential for addressing OHS issues promptly.

Employers must provide adequate training to ensure employees can perform their work safely. This includes:

• Induction training for new employees.
• Task-specific training.
• Regular refresher courses.

Training should be tailored to the specific needs of the workplace and its hazards.

Your notice period and redundancy pay depend on how long you've worked for the employer. The required notice period depends on your length of continuous service:

• 1 year or less: 1 week
• More than 1 year but less than 3 years: 2 weeks
• More than 3 years but less than 5 years: 3 weeks
• More than 5 years: 4 weeks

Employees over 45 years old with at least 2 years of continuous service receive an additional week's notice.

Here's how your redundancy pay is calculated under the Fair Work Act. Redundancy pay is based on your continuous service with the employer, calculated as follows:

• At least 1 year but less than 2 years: 4 weeks' pay
• At least 2 years but less than 3 years: 6 weeks' pay
• At least 3 years but less than 4 years: 7 weeks' pay
• At least 4 years but less than 5 years: 8 weeks' pay
• At least 5 years but less than 6 years: 10 weeks' pay
• At least 6 years but less than 7 years: 11 weeks' pay
• At least 7 years but less than 8 years: 13 weeks' pay
• At least 8 years but less than 9 years: 14 weeks' pay
• At least 9 years but less than 10 years: 16 weeks' pay
• At least 10 years: 12 weeks' pay

​:contentReference[oaicite:2]{index=2}

An employer can apply to the Fair Work Commission to reduce the redundancy pay if:

• They have obtained other acceptable employment for the employee.
• They cannot afford the full redundancy amount.

​:contentReference[oaicite:5]{index=5}

Employees have the right to:

• Be consulted about the redundancy process.
• Receive the appropriate notice period or payment in lieu.
• Receive redundancy pay if eligible.
• Be considered for redeployment within the organization or associated entities.

​:contentReference[oaicite:6]{index=6}

Employers must:

• Ensure the redundancy is genuine.
• Consult with employees as required by awards or agreements.
• Provide the correct notice period or payment in lieu.
• Pay eligible employees their redundancy entitlements.
• Consider redeployment opportunities within the organization or associated entities.

​:contentReference[oaicite:7]{index=7}

Not all employees are eligible for redundancy pay. Exclusions include:

• Employees with less than 12 months of continuous service.
• Casual employees.
• Employees on fixed-term contracts.
• Apprentices and trainees engaged only for the length of the training agreement.
• Employees dismissed for serious misconduct.
• Employees of small businesses with fewer than 15 employees.

​:contentReference[oaicite:3]{index=3}

An employee may challenge a redundancy if they believe:

• It is not a genuine redundancy.

• Proper consultation did not occur.

• They were unfairly selected for redundancy.

Challenges can be made through unfair dismissal claims or general protections applications.

Genuine redundancy payments are tax-free up to a certain limit, which is calculated based on a base amount plus an additional amount for each completed year of service. For the 2024–25 financial year, the tax-free threshold comprises a base amount of $12,524 plus $6,264 for each year of service. Amounts exceeding this tax-free limit are treated as Employment Termination Payments (ETPs) and are taxed at concessional rates up to a capped amount. The specific tax rates and caps depend on factors such as the recipient's age and the total amount received. It's important to note that these thresholds are indexed annually, so they may change over time.

A redundancy is considered genuine if:

• The employer no longer requires the role to be performed by anyone due to operational changes.
• The employer has complied with any obligations to consult about the redundancy under an award or registered agreement.
• It was not reasonable to redeploy the employee within the employer's enterprise or an associated entity.

​:contentReference[oaicite:0]{index=0}

Employers must consult with employees when considering redundancy, as stipulated in relevant awards or agreements. This process involves:

• Notifying employees of the proposed changes.
• Providing information about the changes and their expected effects.
• Discussing measures to avert or mitigate adverse effects on employees.

​:contentReference[oaicite:1]{index=1}