Unfair dismissal in Australia isn’t just a legal issue, it's a system stacked against the vulnerable, writes Gerry Georgatos.
IN AUSTRALIA, THE FABRIC of workplace rights is meant to be woven with protections, procedural fairness and dignity of person.
Yet, for many, the journey from contractor to supply and from employment to performance, from management/employer denial of these productivity acts and facts and from deliverer to discard, is fraught with betrayal, procedural tightropes, and invisibilities.
The story of unfair dismissal is not just one of wrongful terminations, but of structural blind spots, human costs, and eroded good faith and hideous reprehensions.
At the heart of Australian industrial law lies the Fair Work Act 2009 — a legislative cornerstone that heralded reform and centralisation of workplace relations. Coming into effect on 1 July 2009 and further operationalised in 2010, it replaced the fragmented WorkChoices regime with a national framework designed to protect employees from arbitrary dismissal and uphold fair minimum standards. Its remit spans dismissal, discrimination, bullying, and the terms of employment itself. But while the Act offers mechanisms for redress, its application is tethered to stringent timelines and technical prerequisites that many vulnerable workers struggle to meet.
The Form F2 and the 21-Day Cliff
The primary vehicle for challenging an unfair dismissal is the Form F2 Application for Unfair Dismissal Remedy, lodged with the Fair Work Commission (FWC). This application must be filed within 21 calendar days from the date the dismissal took effect. This timeframe is not merely bureaucratic — it is a gatekeeper. After 21 days, unless exceptional circumstances exist, the door to remedy slams shut.
This time constraint is brutally indifferent to those already battling psychological injury, disability, or workplace trauma. Many dismissed workers are caught in shock, scrambling through grief, legal uncertainty, or medical crises — unable to articulate, let alone lodge, their case within three weeks. The Form F2 requires details of the dismissal, the employer, the grounds for the claim, and any remedy sought. It also requires legal clarity: was the dismissal harsh, unjust, or unreasonable under s 387 of the Act? Was the applicant a "national system employee"? Was the employer a "national system employer"? These are legal filters that exclude many — including some casuals, contractors, and workers with less than the minimum employment period.
Yet the real human stories reveal the Act’s strengths — and limits.
Between contractor and employee: The appropriation of contribution
One emerging pattern is the treatment of individuals who first enter organisations as independent contractors or consultants, often bringing funding contracts, clients, or project deliverables with them. These individuals, rich in social capital and community trust, are later converted to employees —ostensibly for ease of payroll and institutional fit. What follows, however, is often betrayal.
A chilling example: A consultant brings a state-funded project into an NGO. To align with organisational frameworks, they agree to become an employee. Within months, their role is diminished, access to project data is restricted, and workplace hostility grows. Suddenly, they are dismissed — ostensibly for "incompatibility" or "performance concerns." In reality, it is a strategic appropriation: the employer retains the project, funding stream, and community connections, while discarding the individual who brought them in.
This tactic weaponises employment itself. The moment the person converts from independent contractor to employee, their rights change — but so too does their exposure. What once was a bilateral arrangement becomes subject to internal politics, power abuse, and managerial misconduct. The law is only slowly catching up to such manipulations.
Disability and dismissal: The Parkinson’s Paradigm
Consider the experience of an individual with advanced Parkinson’s disease, a neurodegenerative condition characterised by tremors, bradykinesia, and speech impairment. Once a fast-typing professional, they now type with a single finger. Their mind remains brilliant, their experience vast — but their motor skills slowed, sometimes agonisingly so.
In an ideal workplace, such a worker would be supported with reasonable adjustments under the Disability Discrimination Act 1992 and the Fair Work Act. These may include:
- voice recognition software;
- delegation of manual data entry to administrative staff;
- extended timelines for documentation; and
- flexible duties matched to strengths.
But in practice, too often they hear:
“I don’t care about your Parkinson’s. You were hired to do this work. Do it — or leave.”
This is not merely an absence of accommodation — it is active discrimination. It violates s351 of the Fair Work Act, which prohibits adverse action based on disability, and breaches the Disability Discrimination Act’s obligations for inclusion.
One such individual was told, during a performance review, that their “slowness” and “inability to do spreadsheets” made them “unfit” for the organisation. Despite requests for support — such as delegating spreadsheet tasks to existing admin staff — they were denied assistance. The employer even blocked collaborative workflows, insisting that the worker “prove themselves” without help. This not only harmed productivity but pushed the employee into neurological exhaustion, triggering worsening symptoms, psychological injury, and eventual dismissal.
This was disability discrimination intersected with procedural cruelty.
Workplace bullying, mobbing, and narcissistic gaslighting
While unfair dismissal laws focus on the termination itself, the lead-up is often paved with bullying, mobbing, and gaslighting. These are insidious, systematic efforts to undermine an employee’s credibility, worth, and mental health.
In one case, a general manager, in collusion with a CEO, fabricated emails, misrepresented the employee's actions, and created a false “performance management file.” Staff were coerced into making complaints. Some resigned rather than lie. Others – fearful of job loss – signed templated statements ghostwritten by the same manager.
The employee at the centre of this storm had originally come in as a contractor, securing several state funding streams for the organisation. Once these were embedded and the employee became permanent, the organisation turned hostile — presumably to claim sole ownership of the work.
The employee, who also happened to be a First Nations and Culturally and Linguistically Diverse (CALD) individual with a disability, faced layers of intersectional discrimination: racial exclusion from decision-making, silence in response to their ideas, and punitive reactions when raising concerns.
Such manipulation is designed to trigger despair. It strips workers of dignity, isolates them, and then claims their “exit” is their own fault. Legally, such conduct may constitute:
- constructive dismissal (where resignation is coerced);
- breach of contract and good faith;
- general protections contraventions (s 340–351, Fair Work Act);
- unlawful discrimination (Australian Human Rights Commission jurisdiction); and
- workplace bullying (reportable to the Fair Work Commission under Part 6-4B).
The legal remedies — and their limits
Where can one turn?
- Fair Work Commission — for unfair dismissal claims (Form F2) and general protections claims (Form F8), particularly if discrimination or retaliation is involved.
- Australian Human Rights Commission — for disability, race, sex, or age discrimination.
- State Anti-Discrimination Commissions — for localised remedies.
- Federal Circuit and Family Court of Australia — if mediation fails or where serious breaches of workplace law are evident.
- AHRC Disability Guidelines — useful in arguing for inclusion standards and proving negligence in making reasonable adjustments.
Yet these bodies are not immune to proceduralism. Justice, for many, depends on capacity to argue a case, secure representation, and relive trauma in evidentiary detail.
Psychosocial harm and systemic breaches
The deepest harm is often invisible. When an individual with a disability is targeted, isolated, or denied accommodations, it inflicts psychic wounds. When racism, gaslighting and appropriation intersect, the trauma compounds.
For one employee, the experience was so distressing, it led to complex PTSD. A once-proud deliverer – renowned in communities for their contribution – was reduced to suicidal ideation. They were not dismissed for misconduct or underperformance. They were dismissed because they exposed power, dared to ask for fairness, and refused to let their contributions be stolen.
Such workers deserve not only legal remedy — but restoration of dignity.
Conclusion: From redress to repair
The Fair Work Act, for all its structure, cannot alone rectify the emotional devastation wrought by unfair dismissal. But it can be a platform for accountability. It can remind employers that people are not expendable. That lived experience, community trust, and legacy work cannot be stolen under the guise of performance management.
To those battling the F2 form, the 21–day deadline, or the shadow of dismissal: you are not alone. There is law, there is advocacy, and there is resistance. And where that fails, there is still truth — and the record you leave behind.
No workplace should become a theatre of cruelty. No dismissal should go unchallenged when it is rooted in betrayal, disability discrimination, or racial injustice.
Gerry Georgatos is a suicide prevention and poverty researcher with an experiential focus on social justice.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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