What is a “dismissal” under the Fair Work Act?

The definition of “dismissal” under the Fair Work Act 2009 (Cth) is critical for determining eligibility for unfair dismissal remedies. This guidance note explores the statutory criteria and key legal principles that shape when an employee is considered dismissed. It highlights the complex distinctions between termination on the employer’s initiative, forced resignation, and exceptions such as fixed-term contracts and training arrangements.

Topics Covered

• What constitutes a “dismissal”?
• When has termination occurred at the employer’s initiative?
• Will a forced resignation be viewed as a dismissal?
• Will the end of a contract for a specified time, task, or season be viewed as a dismissal?
• Will the end of a training arrangement be viewed as a dismissal?
• Will a demotion terminate an employment contract?

Essential Insights

• Assess whether an employee’s termination aligns with the statutory definitions under s 386(1) and exceptions in s 386(2).
• Understand the nuanced distinction between employer-initiated termination and “forced resignation” requiring objective evidence.
• Evaluate how recent regulatory changes impact the use and interpretation of fixed-term and maximum term contracts after 6 December 2023.
• Be alert to the potential for repudiatory conduct in demotions to amount to dismissal under employment law.
• Recognise how case law, including key decisions like Bupa Aged Care v Tavassoli and Khayam v Navitas English, influence dismissal analysis.
• Consider the interaction between dismissal definitions and protections under the general protections regime for non-renewal scenarios.