Question 1

What constitutes unfair dismissal under Australian law?

Accepted Answer

Under the Fair Work Act 2009, an employee may bring an unfair dismissal claim if their dismissal was harsh, unjust, or unreasonable. The Fair Work Commission considers factors including whether there was a valid reason for dismissal, whether the employee was notified and given an opportunity to respond, and the size of the employer's business. Employees must generally have completed the minimum employment period (six months, or 12 months for small business employers) and earn below the high income threshold or be covered by an award or enterprise agreement.

Question 2

Are restraint of trade clauses enforceable?

Accepted Answer

Restraint of trade clauses are enforceable in Australia only to the extent that they are reasonably necessary to protect a legitimate business interest such as confidential information, trade secrets, or customer relationships. Courts will consider the scope, duration, and geographic extent of the restraint when assessing reasonableness. Cascading restraint clauses that allow a court to read down an overly broad restraint are commonly used to improve the prospects of enforcement.

Question 3

What are an employer's obligations during a redundancy?

Accepted Answer

Employers must ensure that the redundancy is genuine, meaning the position is no longer required to be performed by anyone. Under the Fair Work Act, employers must consult with affected employees, consider redeployment opportunities, and provide statutory notice and redundancy pay based on the employee's period of continuous service. Additional obligations may apply under applicable modern awards or enterprise agreements.

Employment Law

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Mark Hemery

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