ER Practice Guide Conduct & performance

Reference

Glossary

Plain-language starting points for terms used across the guide. Definitions are deliberately concise; the relevant module and current source control the analysis.

Training material only โ€” not legal advice. Definitions may be incomplete outside the context in which the term is used.

Adverse action

Action by an employer that disadvantages an employee, including dismissal, for a prohibited reason under the general protections provisions.

Workplace right

A right or entitlement arising under a workplace law, instrument or process, or the ability to make a complaint or inquiry about employment.

Reverse onus

An evidentiary rule in general protections proceedings. Once the relevant statutory facts are in issue, the decision-maker may presume the prohibited reason unless the employer proves otherwise.

Minimum employment period

The statutory period relevant to eligibility for an unfair dismissal application. It is not the same question as whether a dismissal was fair.

High-income threshold

A statutory threshold that may affect unfair dismissal coverage, subject to the applicable award or enterprise agreement and the law current at the relevant time.

Genuine redundancy

A statutory concept with specific elements. Calling a decision a restructure does not itself establish genuine redundancy.

Serious misconduct

Conduct that may justify summary dismissal under the applicable law, instrument, contract or policy. The label does not replace analysis of the facts and process.

Summary dismissal

Dismissal without notice where the employer relies on a lawful basis to do so. The source of the power and the facts supporting it must be checked.

Support person

A person who attends a disciplinary or dismissal meeting to provide support. Their role and the employee's opportunity to have one may also be governed by an instrument, contract, policy or established process.

Representation

Advocacy or assistance in a workplace process or proceeding. Whether a person may be represented, and by whom, depends on the applicable source and forum.

Briginshaw considerations

The practical caution that serious allegations require evidence commensurate with their gravity before a fact is found on the balance of probabilities.

Reinstatement

Returning an unfairly dismissed employee to employment. It has statutory primacy among remedies, but whether it is appropriate depends on the facts.

Mitigation

Steps taken by a dismissed employee to reduce loss, usually relevant to compensation. It does not retrospectively make a dismissal fair.

Repudiation

Conduct showing an intention not to be bound by an employment relationship or a fundamental term. The question is objective and fact-dependent.

PIP

Performance improvement plan. A PIP is a possible management tool, not a universal legal precondition to dismissal.

EA

Enterprise agreement.

FWA

Fair Work Act 2009 (Cth).

FWC

Fair Work Commission.