Examples Of Common Unlawful Dismissal Scenarios

We see a lot of situations where the employee is terminated for an alleged "redundancy", but after some investigation, it appears that the redundancy was not genuine.

A redundancy is not genuine if any one of the following is present:

• The job that the employee was doing is still required to be performed by someone;

• It would have been reasonable in all the circumstances to redeploy the employee elsewhere within the organisation (including any associated entities of the employer); or

• If the employee is covered by a modern award or an enterprise bargaining agreement, the employer failed to properly consult with the employee before making a decision to make their position redundant. Consultation usually includes discussing the redundancy with the employee, giving the employee an opportunity to have their say about their proposed redundancy, and putting the important information in writing.

If the employee was terminated because of a redundancy and any one of the above applies, the dismissal is not a genuine redundancy under s 389 of the Fair Work Act, and the employee may be able to bring an unfair dismissal claim.

There are some requirements before an employee is entitled to lodge an unfair dismissal claim; see Unfair Dismissal for more information, or speak to our unfair dismissal lawyers.

Under the unfair dismissal laws, an employee dismissed for poor performance should generally have been warned about the specific problem, told their job was at risk, and given a reasonable opportunity to improve (s 387(e)). If the employee is covered by the unfair dismissal laws, these circumstances can make a performance dismissal unfair:

• The employee did not receive proper training;

• The employer did not explain to the employee how the employee's performance is lacking;

• The employer did not give the employee reasonable time to improve their performance;

• The alleged performance breaches were not caused by the employee;

• The employee was not warned that termination of their employment was a possibility if performance was not improved; or

• There is another good reason to explain why the employee did not perform according to expectations.

Read our page on performance management for more information.

An employee who is protected from unfair dismissal can lodge an unfair dismissal claim if their employment was terminated without a fair process: for example, they were not told the reason, were not given a real chance to respond, or were refused a support person they asked for. The Commission weighs these matters with everything else. See our page on show cause letters.

Generally, if an employee resigns from employment, they cannot bring an unfair dismissal claim about a dismissal. For a general protections or unlawful termination claim, from 7 July 2026 an employee who alleges they were forced to resign can still apply to the Fair Work Commission within 21 days. The Commission does not decide whether there was a dismissal before dealing with the dispute (ss 365, 368(1A), 773, 776(1A)), but the employee must prove it if the matter goes to court.

The exception is where an employee is forced to resign because of the employer’s conduct or course of conduct (s 386(1)(b)). This is often called constructive dismissal. The law then treats the employee as dismissed, and a dismissal claim can be brought. The test is objective and strict: it is not enough that the employee was unhappy or had good reason to leave.

An example is where the employer tells the employee to resign or be fired. See our page on resigning or being forced to resign.