The Fair Work Act entitles Australia workers to many workplace legal rights that protect them from unfair dismissal. Knowing what to look for can help you decide whether you have grounds to challenge your employer’s decision.
In this article, we explore some common workplace legal red flags that may indicate your dismissal was not lawful and what you can do if you suspect it wasn’t handled fairly. Let’s look at some of the most common workplace legal rights violations:
Workplace legal red flag 1: You weren’t given a valid reason
Under the Fair Work Act, an employer must have a valid reason to fire you. This can include misconduct, poor performance or a range of other reasons which we explain here.
Being sacked without any clear explanation or with vague reasoning like “it’s just not working out” may be a sign your dismissal was not lawful. A valid reason should be based on evidence and related to your role or behavior. An employer must notify you of the valid reason prior to making the decision to fire you. It must be communicated to you in plain and clear terms.
Red flag 2: You weren’t given any warnings
If you were sacked without being told there were concerns about your performance, capacity or behaviour, this could be a major indicator of unfair dismissal.
There is a common belief that an employee must receive three warnings prior to being terminated. This is not actually true. The Fair Work Act does not mandate a specific number of warnings. However, employers must warn you about your inadequate performance, capacity or behavior prior to a termination.
Simply telling an employee to “do better” is not enough. Any warning must clearly explain what part of your performance is falling short and that your job is at risk if there is no improvement. An employer must also give you sufficient time to address concerns.
Workplace legal red flag 3: You didn’t get a chance to respond
Before an employer makes the decision to dismiss an employee, they must first notify them of the reason and give them a genuine opportunity to respond to the reason. For example, if your boss informs you of their intention to fire you due to misconduct, they must provide you the details of the allegation. You must then be given the opportunity to respond to the allegation and provide your side of the story.
The Fair Work Act states that this process does not need to be formal. Rather, it should be handled in a “common sense way.” Past Fair Work Commission cases have affirmed that employers can’t decide to fire someone and then simply “go through the motions” of providing them an opportunity to respond. The employer must be open to not sacking the employee based on their response and not make a pre-determined decision.
Red flag 4: You were dismissed for exercising a workplace right
The General Protections Provisions of the Fair Work Act entitle Australian workers to a number of workplace legal rights. This includes the right to correct pay and other entitlements, the right to partake in union activities, and the right to complain about workplace conditions.
If an employee fires or treats you unfairly for making a complaint about pay, for instance, this is called adverse action. If you are victim of adverse action, you can make a claim with the Fair Work Commission to seek compensation. You can learn more about the General Protections provisions and adverse action in our detailed article.
Red flag 5: A proper investigation did not take place
If an employer makes an allegation of misconduct against a worker, they must conduct a workplace investigation into the allegation prior to deciding to dismiss them. A genuine investigation requires gathering evidence from all relevant parties, giving the employee a chance to respond, and considering all information impartially.
If an employer skips these steps – by relying solely on hearsay, making assumptions, or rushing to a conclusion – the process lacks procedural fairness. Employees are entitled to a number of workplace legal rights when it comes to workplace investigations. This includes receiving reasonable prior written notice that an investigation has been initiated. You can read about the rights you have during workplace investigations in our detailed article.
Workplace legal red flag 6: Your dismissal was discriminatory
A key workplace legal right afforded by the Fair Work Act is protection against dismissal for discriminatory reasons. The General Protections provisions include several protected attributes, including age, sex, race, religion, pregnancy, disability or sexual orientation. It is unlawful for an employer to dismiss or treat you unfairly based on a protected attribute. This amounts to adverse action.
Chef’s workplace legal rights violated with dismissal via text
A recent unfair dismissal case that involved a number of the aforementioned workplace legal red flags is Takeshi Sekigawa v Yuaus Enterprise Pty Ltd [2025]. Takeshi Sekigawa started working for Yuaus Enterprise in August 2022. He joined as head chef at the company’s Sou Ramen Lab restaurant in North Sydney.
As part of his role, Mr Sekigawa was often asked by the owner of Yuaus Enterprise for his input on business matters. Mr. Sekigawa claimed that the owner often rejected his suggestions for the business. He said that another staff member informed him that the owner had instructed others not to heed his advice.
Mr. Sekigawa told the Fair Work Commission that this reduced his enthusiasm for his job, but that he still performed his duties. He also claimed that he was granted a five per cent share in the company in mid-2023, which was later revoked in January 2024 and did not generate any income.
Dismissed over text
In August 2024, Mr. Sekigawa said his relationship with the owner began to deteriorate. He recounted a meeting where the owner questioned his motivation and discussed the business’s financial difficulties and his desire to sell. The meeting concluded with the owner advising Mr. Sekigawa to “go away and think about what he wants to do” with a follow-up meeting planned. This subsequent meeting did not occur.
Mr. Sekigawa explained that he took his personal kitchen knife home on 30 August 2024. This was something he had done previously. A few days later, the owner sent him a text message stating, “knowing you have already packed all your own items away on Friday, I know you are done working at Sou.” In the text, the owner said that an official release letter would be sent.
Worker argued workplace legal right to procedural fairness violated
On 1 September 2024, the owner sent Mr. Sekigawa a termination letter, informing of his instant termination. The owner cited misconduct and poor performance as the reasons for the sacking. Mr.. Sekigawa told the Fair Work Commission that he was “shocked” by his firing. He also said he was insulted by the allegations, which he believed were “concocted.”
Feeling that his workplace legal rights had been violated, Mr. Sekigawa subsequently lodged an unfair dismissal claim with the Fair Work Commission. He argued that he had not received any warnings from Yuaus Enterprise about his alleged misconduct and poor performance. Mr. Sekigawa said that he was not invited to any meeting to discuss these issues before receiving the termination letter. He also said that he was never given the chance to respond to the allegations.
In response to Mr. Sekigawa’s claim that his workplace legal rights had been violated, Yuaus Enterprise provided the Fair Work Commission with copies of messages exchanged with Mr Sekigawa. The company claimed that these showed that Mr. Sekigawa had failed to train staff and follow menu change instructions. Yuaus Enterprise also submitted evidence that showed the company was around $200,000 in debt and struggling financially.
Were workplace legal rights violated? Fair Work investigates.
Yuaus Enterprise had fewer than 15 employees at the time of Mr Sekigawa’s dismissal. The Fair Work Commission therefore had to determine if the sacking adhered to the Small Business Fair Dismissal Code. To do so, an employer must believe the serious misconduct justified immediate dismissal. And secondly, that its belief was based on reasonable grounds, including a reasonable investigation.
A key piece of evidence provided by Yuaus Enterprise was an audio recording of a meeting involving Mr. Sekigawa and the owner in August 2024. This took place a few weeks prior to his termination. The owner conceded to the Fair Work Commission that during the meeting he had only discussed one issue that he would later use as a reason to dismiss Mr. Sekigawa. This was his perceived lack of motivation. The owner asked him to consider his future employment with Yuaus Enterprise and claimed Mr. Sekigawa never responded to this request.
Fair Work found employer did not conduct adequate investigation
The Fair Work Commission accepted Yuaus Enterprise’s genuine belief in the seriousness of Mr. Sekigawa’s conduct. However, it found that this belief was not based on reasonable grounds. The Commission found that the owner did not honour Mr. Sekigawa’s workplace legal rights by failing to conduct a reasonable investigation into the allegations. Also, that Mr. Sekigawa was not given an opportunity to provide his version of events.
It was noted that Mr. Sekigawa provided “compelling answers to the allegations” during the proceedings. The Commission said that these could have been offered to the owner had a proper investigation occurred.
The summary sacking was therefore found to be inconsistent with the Small Business Fair Dismissal Code. Even if not summarily dismissed, the lack of formal warnings and procedural fairness would still have rendered the dismissal inconsistent with the Code.
Worker treated as ‘scapegoat,’ allegations rejected by Fair Work
The Fair Work Commission next assessed whether the dismissal was harsh, unjust or unreasonable. It examined the six reasons cited in Mr. Sekigawa’s termination letter. Yuaus Enterprise argued that Mr. Sekigawa had not responded when asked during the meeting if he wanted to continue his role. However, the Commission noted that Mr. Sekigawa thought that a further meeting had been scheduled to discuss the matter. It was accepted that this meeting did not go ahead as the owner was not available.
On the claim of non-performance of duties, the Commission found that this was not backed up by evidence. It said that the restaurant continued to “operate normally” while Mr. Sekigawa was in his role. Yuaus Enterprise had also argued that Mr Sekigawa’s business decisions led to business challenges. The Commission rejected this argument, saying that it “appears to be an attempt to blame” Mr. Sekigawa for the failure of the company’s new restaurant.
The Commission said that even if he had given bad advice to the owner, which was not proven, this still “would not constitute misconduct.” It ultimately decided that Mr. Sekigawa’s workplace legal rights had been violated and that there was no valid reason for his dismissal. The Commission suggested that the owner’s financial stress might have led him to treat Mr. Sekigawa as a “scapegoat.”
Worker wins unfair dismissal payout
The Fair Work Commission found that Mr. Sekigawa was not notified of the reasons for his dismissal before the decision was made. He was also not provided with an opportunity to respond to these reasons before his termination. The August 2024 meeting was deemed insufficient for this purpose. These factors weighed in favor of finding the dismissal unjust and unreasonable.
It was also noted that Mr. Sekigawa had not ever received verbal or written warnings about his alleged poor performance. It also noted that the allegations made against him were not substantiated. The Commission lambasted the employer for its decision to fire him over text, saying that it was “not appropriate.”
Ultimately, the Fair Work Commission found that Mr. Sekigawa’s workplace legal rights had been violated and that his sacking was unjust and unreasonable. Mr. Sekigawa did not seek reinstatement, so the Commission found that compensation was appropriate. Evidence suggested Yuaus Enterprise was in a precarious financial position, warranting a lower compensation order. The company was ordered to pay Mr Sekigawa $7,000 less taxation, plus superannuation of $805.
Have you had your workplace legal rights violated?
If you have been victim to any of the red flags we discussed in this article, you may be eligible to contest your sacking or treatment via the Fair Work Commission. Our team at A Whole New Approach can help you make an unfair dismissal or General Protections claim. We are not lawyers, however we are the nation’s leading workplace commentators, advisors and influencers.
We’ve been helping Australian workers seek reinstatement or compensation for the last 30 years. With our help you can put forward the best case to the Commission and hold your employer to account.
Make sure you get in contact quick, as you only have 21 days from the date of your termination to lodge a claim. Call us now on 1800 333 666 for a free and private discussion.
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