Have you been unfairly dismissed?

Syvannah Harper

What you can do if you have been unfairly dismissed?

Wooden gavel and golden ballpen lying down in a printed document titled Unfair Dismissal.

Unfair dismissals occur when an employee has been unfairly dismissed from their job.

In Australia, an employee can challenge an unfair dismissal by making a statutory claim for an unfair dismissal remedy in the Fair Work Commission or a State Industrial Relations Commission, depending on the employer.


Unfair dismissals in the federal Jurisdiction are governed by the Fair Work Act 2009 (Cth) (FW Act), which protects employees from unfair dismissal where the employee:

a)      has been employed for at least 12 months where the employer has less than 15 employees or 6 months where the employee has more than 15 employees; and

b)     where one or more of the following applies:

a.      the employee earns below the high-income threshold;

b.      the employee is covered by a modern award;

c.      where an enterprise agreement applies to the employees employment.


Has there been a dismissal?

The FW Act states that an employee is considered to be dismissed where:

  • the employee has been terminated from their employment on the employer’s initiative; or
  • the employee was forced to resign from their employment because of the conduct or course of conduct of the employer (this is also known as constructive dismissal); or
  • the employee was demoted which resulted in a significant reduction in their remuneration; or
  • the dismissal is not a case of genuine redundancy.


Casual Employees

In some circumstances an employee may not know if they have been dismissed from their employment. This can occur when an employee is employed on a casual basis.


Casual employees are usually employed on an hourly, daily or weekly basis, without any commitment from the employer as to ongoing employment.

However, in some cases casual employees work regular and systematic shift patterns. If this is the case, a casual employee may be entitled to make an unfair dismissal application where the employer ceases to provide them with future work. 


Constructive Dismissal

Constructive dismissal is a term commonly used where an employee feels that their employer has taken adverse steps against them in order to get them to resign from their employment.


However, in order for a resignation to be deemed a constructive dismissal, an employee will need to prove that they had no other option but to resign from their employment.


In Weber v Deakin University[1] Mr Weber resigned from his employment following a period of illness. After a significant period of time, the University ceased trying to obtain further independent medical assessments in respect of Mr Webers ability to return to work.


Mr Weber made an application for an unfair dismissal remedy to the Fair Work Commission stating that he had no other reason but to resign on the basis that the University refused to make reasonable adjustments to allow him to return to work.


Commissioner Roe rejected Mr Webers claim stating “I cannot identify any actions by Deakin that were intended to force Mr Weber to resign or has the probable result that he would resign, or which left him with no real choice but to resign.”

In circumstances where an employee feels they have no other option but to resign, CJM Lawyers strongly recommends seeking legal advice prior to resigning.


Was the dismissal unfair?

Where an employee can satisfy the Commission that they have been dismissed and are protected by the unfair dismissal laws, the Fair Work Commission will make a determination as to whether the dismissal was unfair.


In doing so the Fair Work Commission will consider the following:

1.      if the dismissal was harsh, unjust or unreasonable; and

2.      if the dismissal was inconsistent with the Small Business Fair Dismissal Code.

In determining if the dismissal was harsh unjust or unreasonable, the Fair Work Commission will consider the following:

3.      if the employer had a valid reason for the dismissal;

4.      if the employee was afforded procedural fairness and/or if the evidence before the employer supported a conclusion that the employee ought to be dismissed;

5.      if the punishment fits the crime or was disproportionate to the conduct alleged; and

6.      if the dismissal was harsh, taking into account the employee’s length of service, performance and conduct history and personal circumstances.


What remedies are available to me if the Fair Work Commission determines my dismissal was unfair?

The primary remedy for an unfair dismissal is reinstatement, however, reinstatement is rarely awarded. This is on the basis that once a dismissal has occurred there is usually a breakdown in the employment relationship. The Fair Work Commission is reluctant to reinstate the employment relationship where this has occurred.


The more common remedy is an order of payment of compensation. The maximum compensation payable is 26 weeks’ wages.

Any award of compensation by the Fair Work Commission is determined by taking into account a number of factors. These include:

  • the loss of wages to the employee as a result of the dismissal;
  • the length of the employee’s services and the time in which it may take the employee to find new employment (if they haven’t already);
  • the employee’s conduct leading up to the dismissal, including whether the employee engaged in misconduct;
  • the likely length of service the employee would have had with the employer had they not been unfairly dismissed; and
  • the steps taken by the employee to mitigate their loss of income following the dismissal.


In circumstances where the employee finds new employment following the dismissal, the employee’s loss will be limited to the number of weeks between the dismissal and the commencement of the new position.


Where to from here? 

All unfair dismissal complaints have a 21-day time limit, so if you are concerned that you have been unfairly dismissed from your employment, you should seek urgent advice from a lawyer experienced in employment law.


You can contact one of our employment lawyers on 1300 245 299.

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Preparing a Contract for Sale of Land in NSW is a critical step in any property transaction. For vendors, the contract sets the legal framework for the sale and defines the rights and obligations once contracts are exchanged. Errors or omissions at this stage can expose a vendor to issues such as delays and disputes.  In NSW, a property cannot be marketed for sale without a draft Contract for Sale. The contract must include prescribed documents, also known as vendor disclosure documents. These include: a current title search; a plan of the land; relevant dealings affecting the land; a Council Planning (section 10.7) Certificate; and a sewerage diagram. Depending on the property, additional documents may be required, such as strata records, pool compliance or non-compliance certificate or notices affecting use or development. The consequences of missing disclosure documents can be significant. A purchaser may have a statutory right to rescind the contract within 14 days after exchange if certain prescribed documents are not included, which can result in a sale being terminated even where price and key terms have been agreed. It is also important that proper special conditions are drafted. These can address things such as potential property issues, manage tenancy arrangements and tailor settlement terms. Poorly drafted or missing conditions often lead to disputes, which can cause delays in settlement, prompt renegotiation or allow the purchaser to rescind the contract. Timing is also important. Preparing the contract early allows potential issues to be identified before a property is listed. This reduces pressure during negotiations and helps avoid last minute amendments that can unsettle a transaction or lead to a purchaser withdrawing. CJM Lawyers assists vendors across NSW with the preparation of Contracts for Sale of Land, ensuring that disclosure obligations are met and that the contract accurately reflects the property and the vendor’s position. We provide practical advice on risk management, special conditions and settlement planning. A well prepared contract is the foundation of a smooth property sale. Early legal advice can reduce risk, protect value and support a timely settlement. If you would like advice on preparing a Contract for Sale, contact the CJM Lawyers NSW property team.
By Kale Venz 3 February 2026
You’ve served your payment schedule disputing a construction payment claim. Now the claimant has applied for adjudication. What happens next? Many respondents enter the adjudication process unprepared, not realising how quickly decisions are made or how binding they are. Understanding the adjudication process under Queensland’s Building Industry Fairness (Security of Payment) Act 2017 and NSW’s Building and Construction Industry Security of Payment Act 1999 is critical to protecting your interests. What Is Adjudication? Adjudication is a fast-track dispute resolution process designed to provide interim cash flow relief while preserving parties’ rights to pursue final resolution through court or arbitration. An independent adjudicator reviews the payment claim, payment schedule, and supporting materials, then makes a binding determination on how much must be paid. The key word is interim. The adjudicator’s decision determines payment obligations temporarily, not permanently. However, most disputes end at adjudication – the cost and delay of further litigation means parties often accept the determination as final. The Timeline: Speed Is Everything Adjudication moves fast. Once an application is made: Queensland : You typically have 10 business days to file your adjudication response. The adjudicator then has 15 business days to make a determination (extendable to 20 days with consent). New South Wales: You have 5 business days to file your response (extendable to 10 days with claimant consent). The adjudicator has 10 business days to decide (extendable to 15 days). These timeframes are strictly enforced. Late submissions may be rejected entirely, leaving you unable to present your case. What goes into an Adjudication Response? Your adjudication response is your opportunity to defend your position. It must be comprehensive because you’re limited to the reasons you included in your payment schedule – no new arguments are permitted. A strong response typically includes: Detailed submissions: Explaining why the scheduled amount is correct, addressing each element of the claim Supporting evidence: Contracts, correspondence, site records, photographs, expert reports, invoices Legal analysis: Interpretation of contract terms, legislative requirements, and relevant case law Technical challenges: Jurisdictional objections, validity issues with the claim or adjudication application This is not a simple letter. Adjudication responses regularly run 30–50 pages with extensive annexures. The adjudicator will be reviewing both parties’ submissions simultaneously, so clarity and organisation matter. The Adjudicator’s Decision The adjudicator will issue a written determination setting out their decision and reasons. They can: Uphold the claimed amount in full Accept your scheduled amount Determine a different amount between the two In both Queensland and NSW, you must pay the adjudicated amount within 5 business days (or as specified in the determination). Failure to pay can result in the claimant suspending work or, more seriously, obtaining a judgment for the debt and pursuing enforcement action against your company. Can You Challenge the Decision? Yes, but the grounds are narrow. You can apply to court to set aside an adjudication determination for: Jurisdictional error: The adjudicator made a decision they had no power to make Denial of natural justice: You weren’t given a fair opportunity to present your case Generally, you cannot challenge the adjudicator’s decision simply because you disagree with their assessment of the facts or law. The threshold for setting aside a determination is high. Importantly, you must still pay the adjudicated amount even while challenging the determination. The principle is “pay now, argue later.” The Importance of Early Preparation The adjudication timeframes are tight. Once you serve a payment schedule disputing a claim, you should assume adjudication is coming and start preparing immediately: Waiting until the adjudication application arrives leaves you scrambling. In NSW, with only 5 business days to respond, delay can be fatal to your case. Get Legal Guidance Adjudication is a high-pressure, time-critical process that requires immediate action and strategic thinking. Whether you’re facing an adjudication application or considering applying for one yourself, experienced legal advice makes the difference between success and failure. CJM Lawyers’ litigation and dispute resolution team regularly represents clients in security of payment adjudications across Queensland and NSW. We understand what adjudicators look for, how to present your case effectively, and how to protect your interests under tight deadlines. Don’t navigate adjudication alone – contact CJM Lawyers today. Disclaimer: This article provides general information only and does not constitute legal advice. Every adjudication is unique and requires specific legal advice tailored to your circumstances. Contact CJM Lawyers promptly if you are involved in a security of payment dispute.
By Kale Venz 3 February 2026
A payment claim arrives from your contractor demanding payment. Your instinct might be to set it aside while you check the details. That delay could be the most expensive mistake you make. Under Queensland’s Building Industry Fairness (Security of Payment) Act 2017 and NSW’s Building and Construction Industry Security of Payment Act 1999, you could become legally obligated to pay the full amount – even if you dispute the work – simply by failing to respond on time. What Is a Payment Claim? A payment claim is a formal written demand for payment under a construction contract. It doesn’t need to be labelled “payment claim” – an invoice or progress claim identifying the work and amount will often suffice. These claims are designed to keep cash flowing through construction projects, giving claimants a fast-track recovery process. The Danger of Doing Nothing If you don’t respond by serving a payment schedule within the prescribed timeframe, you are deemed to have admitted the claim. This means you become liable to pay the full amount – even if the work was defective or never performed. The claimant can take immediate debt recovery action, and you lose your right to dispute through adjudication. The Timeframes Are Tight Unless your contract provides otherwise, the timeframes are tight and are usually: Queensland: 15 business days from receiving the payment claim to serve a payment schedule. New South Wales: 10 business days from receiving the payment claim to serve a payment schedule. These are strict deadlines with limited discretion for extensions. The consequences of missing them are severe. What Is a Payment Schedule? A payment schedule is your formal response to the claim. It must identify the claim, state the amount you propose to pay (which can be zero), and provide reasons if you’re paying less than claimed. What Happens Next? After serving a payment schedule, the claimant can either accept your scheduled amount or apply for adjudication – a rapid process (typically 10–15 business days) where an independent adjudicator reviews the dispute. The adjudicator’s decision is binding, meaning you must pay the adjudicated amount even if you plan to challenge it later in court. Why You Need Legal Advice Now Time is not on your side. Getting legal advice immediately is essential to: Assess validity: Not every claim is valid under the legislation. A lawyer can identify defences quickly. Prepare a payment schedule: An invalid payment schedule leaves you exposed as if you hadn’t responded at all. Don’t Let the Clock Run Out Security of payment legislation protects cash flow in the construction industry, but it places significant responsibility on you to respond quickly and correctly. The penalty for getting it wrong is severe. Our experienced litigation team regularly assists clients with security of payment disputes across Queensland and NSW. We can review your claim, prepare a compliant payment schedule, gather evidence, and represent you in adjudication if required. Don’t face this alone – contact CJM Lawyers today. Disclaimer: This article provides general information only and does not constitute legal advice. Security of payment legislation is complex and fact-specific. It is essential to seek specific professional legal advice tailored to your individual circumstances as soon as you receive a payment claim.
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