Who can claim

Before the Commission looks at whether a dismissal was fair, it has to decide whether it can hear the case at all. Four gateway questions decide that — get one wrong and the merits never get considered.

What you’ll be able to do

• Run the four jurisdictional gateways in the right order before anyone talks about fairness.
• Spot the two things that most often sink an application before it starts: minimum employment period and the 21-day time limit.
• Explain why “the employer had a good reason” doesn’t help if the person was never protected from unfair dismissal in the first place.

The four gateways

Before it considers the merits of any application, the Commission must decide four things, in this order: whether the application was lodged in time, whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether it was a case of genuine redundancy [2021] FWC 928 at [6]. A yes to the wrong one of these ends the case — no valid reason, no process, no proportionality analysis ever gets reached.

Who is protected from unfair dismissal (s.382)

A person is protected from unfair dismissal only if they have completed at least the minimum employment period, and either a modern award covers them, an enterprise agreement applies to them, or their earnings are less than the high income threshold [2020] FWC 5506 at [20].

The two limbs are independent. Earning above the threshold isn’t fatal on its own — a person can still be protected if a modern award covers their role, which is exactly the fight that played out in Rogers v TMM Group: both sides agreed Mr Rogers [2020] FWC 5506 at [4], and agreed his income was above the threshold, but the whole case turned on whether an award covered his maintenance-supervisor role at a mine site.

Minimum employment period (s.383)

The minimum employment period is 6 months, or one year if the employer is a small business employer (fewer than 15 employees) [2022] FWC 2033 at [17].

Casual service mostly doesn’t count. As a general rule, a period of service as a casual employee is excluded from the calculation, except if the casual employee was a regular casual and had, during that service, a reasonable expectation of continuing employment on a regular and systematic basis [2022] FWC 2033 at [19].

This is where labour-hire and broken-service arrangements trip people up. In Mulipola v Hays / DVA, the applicant had worked a string of short assignments through a labour-hire agency; his most recent placement at the host agency lasted only 7 weeks and 1 day [2022] FWC 2033 at [77]. None of his prior casual service counted towards continuity, because it wasn’t shown to be regular-and-systematic engagement giving rise to a reasonable expectation of ongoing work with that particular placement.

Adviser point: before assuming someone clears this gate, map the actual employer against each engagement — a labour-hire worker’s “service” with the host entity and with the agency are not automatically the same thing, and a break in engagements can reset the clock.

The high income threshold

The threshold is an indexed dollar figure set under s.333 of the Act [2022] FWC 338 at [18], and it is measured against earnings as defined in s.332 — wages, amounts applied on the employee’s behalf, and the agreed money value of non-monetary benefits [2022] FWC 338 at [19]. Reimbursements and amounts that can’t be determined in advance (like uncapped commission) are excluded.

Non-cash benefits catch people out. In Johnson v Benex Civil, the employer argued the applicant’s income was [2022] FWC 338 at [2], once a company vehicle, private health cover and a mobile phone/data allowance were added to her base salary using the Fewings formula for valuing private vehicle use. The Commission agreed, on either of two competing mileage calculations, and dismissed the application [2022] FWC 338 at [107].

Adviser point: don’t just compare base salary to the threshold. Add the agreed value of any car, phone, insurance or other non-cash benefit before telling anyone they’re over or under the line — and remember the threshold itself moves each financial year, so always check the figure that applied on the dismissal date, not today’s figure.

The 21-day time limit (s.394(2))

An application must be made within 21 days after the dismissal took effect, or within a further period the Commission allows if satisfied there are exceptional circumstances, taking into account the reason for the delay, when the person became aware of the dismissal, any action taken to dispute it, prejudice to the employer, the merits of the application, and [2023] FWC 2405 at [9].

Exceptional circumstances means circumstances that are [2023] FWC 2405 at [10] — they don’t need to be unique or very rare, and a combination of otherwise-ordinary factors can add up to exceptional. In Chait v Church of Ubuntu, three different versions of the application were filed across a short window and the Commission ultimately found the application was made in time, and, in the alternative, that there were [2023] FWC 2405 at [21].

But a sympathetic reason for delay is not, by itself, enough. In Mamo v ICLED Australia, the applicant’s explanation for a short delay — a difficult mental state following her dismissal — was accepted as genuine, but a good explanation [2021] FWC 3903 at [13], and on the whole of the evidence the Deputy President was not satisfied, declining the extension [2021] FWC 3903 at [54].

Adviser point: the clock starts when the dismissal took effect, not when the employee decides to act. Diarise it on day one of any matter, and don’t assume a credible excuse will be enough — six factors are weighed, not one.

The small business fair dismissal code (s.388)

A dismissal is consistent with the Code if, at the relevant time, the employer was a small business employer and [2023] FWC 2493 at [19]. If the Code was complied with, the dismissal is taken to be fair and s.387 is never reached — this is a complete defence, not a factor to be weighed.

For summary dismissal, the Code only requires that the employer [2023] FWC 2493 at [20]. The leading authority on what that means sets a two-step test: first, did the employer in fact hold the belief; and second, [2023] FWC 2493 at [99]. It is not necessary that the belief turn out to be correct — but the second step requires a genuine investigation, not just an assertion.

That second step is where employers lose the point. In Pewsukngem v Choc Dee Thai Restaurant, the employer summarily dismissed a head chef over sexual harassment allegations surfaced by an internal staff survey. The Commission found the belief was not shown to rest on reasonable grounds — the survey had been run for an unrelated purpose, the termination letter was drafted before the Code checklist was even completed, and the checklist itself misrepresented what notice the employee had been given. The [2023] FWC 2493 at [136].

Adviser point: “we believed it” is step one. Step two — can you show the inquiries that made the belief reasonable, done before the decision, not reconstructed after it — is where most small business Code defences actually fail.

Genuine redundancy as a bar (s.389)

A dismissal is a case of genuine redundancy, and therefore cannot be found unfair, only if three things are all true: the employer no longer required the job to be performed by anyone because of changes in its operational requirements; any award or agreement consultation obligation was complied with; and redeployment within the employer’s enterprise or an associated entity’s enterprise would not have been reasonable [2021] FWC 928 at [8]. Get any one of the three wrong and the objection fails — which is why, in practice, [2021] FWC 928 at [22], and parties often blur them with the separate question of whether the dismissal was otherwise fair.

On the first limb, the focus is on the job, not the person or their duties individually — it is [2021] FWC 928 at [57] any duties left to discharge after a reorganisation, even if some of those duties are redistributed elsewhere. Ulan Coal Mine Limited v Howarth is a Full Bench authority not independently located in this corpus — see the note below. On the third limb, redeployment reasonableness turns on matters like required qualifications, the employee’s skills and experience, location and remuneration, and [2021] FWC 928 at [58] beyond that sample list — from Skinner & Pemberton v Asciano Services, also not independently located in this corpus.

McNichol v Shape Australia shows all three limbs working together. A COVID-era downturn led the employer to restructure its project teams; it found it [2021] FWC 928 at [228]; there was [2021] FWC 928 at [228]; and the Commission accepted that it [2021] FWC 928 at [228] given the downturn was national, not confined to her office. The dismissal was a genuine redundancy [2021] FWC 928 at [229], and the application could not proceed to a harshness assessment.

Adviser point: a redundancy label on a termination letter proves nothing by itself. Each of the three limbs needs its own evidence — and if any award or agreement applies, the consultation step has to actually happen before the decision, not just get explained afterwards.

How the gateways fail

These four are drawn from real decisions. In three, the applicant’s own claim didn’t clear the gate; in the fourth, it was the employer’s defence that failed.

Adviser checklist

Work through these gateways in order before anyone discusses whether the dismissal was fair. A “no” on any one of them can end the matter regardless of how the dismissal was handled.

Practice scenario: the warehouse restructure

Decisions cited

Check each paragraph reference against the published decision on the FWC website before relying on it. Ulan Coal Mine Limited v Howarth, Skinner & Pemberton v Asciano Services and Pinawin T/A Rose.Vi.Hair.Face.Body v Domingo are cited as quoted in later decisions and still need checking in the original — none of them appear as a direct record in this corpus. Rows marked “partial” confirm the proposition pinpoint only — that decision’s own final finding on the point actually in dispute was not independently read in this pass.