Fired for no reason? Let go after raising a workplace issue? If your dismissal feels off, it might be more than just unfair; it could be unlawful. Every year, thousands of Australians challenge their termination under unfair dismissal laws and many succeed in getting compensation or reinstatement. But what is unfair dismissal in Australia?
Unfair dismissal in Australia refers to being sacked in a harsh, unjust or unreasonable manner, often without valid reason or due process. But who’s protected? How do you know if your case qualifies? And what can you do about it?
In this guide, we break down what unfair dismissal really means, how the Fair Work Commission handles claims, who’s eligible to apply and why legal advice can make or break your case.t.
A Quick Overview: What Is Unfair Dismissal in Australia?
Unfair dismissal occurs when an employee is terminated in a manner that is harsh, unjust or unreasonable. Key takeaways include:
- Not all dismissals are unlawful, but they can still be unfair.
- The Fair Work Act 2009 (Cth) governs unfair dismissal claims.
- Employees must meet minimum employment criteria to be eligible to file a claim.
- Lodgement must generally occur within 21 days of dismissal.
- Legal advice can significantly improve your chances of a successful claim.
Let’s explore these points in detail.
What Constitutes Unfair Dismissal?
Under the Fair Work Act 2009, a dismissal may be deemed unfair if:
- The dismissal was harsh, unjust or unreasonable
- It was not a genuine redundancy
- It did not follow the Small Business Fair Dismissal Code (for small employers)
The Fair Work Commission assesses these factors based on the circumstances of each case.
Common Examples of Unfair Dismissal
Unfair dismissal may arise from situations, such as:
- Being dismissed without a valid reason or proper explanation
- Termination due to performance without prior warnings or opportunities to improve
- Being let go after raising a workplace issue or complaint
- Dismissal during a protected leave (e.g. parental leave, sick leave)
- Discrimination based on gender, race, religion, disability or other protected attributes
It’s important to distinguish unfair dismissal from unlawful termination, which involves breaches of anti-discrimination laws or industrial action protections.
Who Can Make an Unfair Dismissal Claim?
Not all employees are eligible to file a claim for unfair dismissal. To qualify, you must:
- Be covered by the national workplace relations system
- Have completed the minimum employment period:
- 6 months for larger employers (15+ employees)
- 12 months for small businesses (<15 employees)
- Earn under the high-income threshold (currently $175,000), unless covered by an award or enterprise agreement
- Be an employee, not an independent contractor
Casual employees may also be eligible if they have worked on a regular and systematic basis.
Time Limits and Lodgement Process
You must apply to the Fair Work Commission within 21 days of being dismissed. This timeframe is strict, and late applications are rarely accepted.
Lodgement Steps:
- Complete the Form F2 – Unfair Dismissal Application
- Submit the form online via the Fair Work Commission website, by email, in person or by mail.
- Pay the application fee (subject to waiver in certain cases)
The Commission will then notify the employer, and a conciliation process is usually scheduled.
What Happens During the Conciliation Process?
Conciliation is an informal mediation process where both parties attempt to resolve the issue without a formal hearing.
Outcomes may include:
- Reinstatement of employment
- Financial compensation
- Mutual agreement to part ways with a settlement
If conciliation fails, the matter may proceed to a formal hearing before a Fair Work Commissioner.
Potential Remedies for Unfair Dismissal
If your claim is successful, the Commission can order one or more of the following:
- Reinstatement: Return to your former role (rare but possible)
- Compensation: Up to 26 weeks’ pay (with caps in place)
- Payment of lost entitlements: e.g. superannuation or leave balances
Note: Compensation does not include damages for emotional distress.
What Is a Genuine Redundancy?
Employers may argue the dismissal was a genuine redundancy, which is a valid defence if:
- The employee’s job is no longer required.
- The employer followed consultation requirements (if applicable).
If the redundancy was used as a pretext for dismissal, the Fair Work Commission can rule it as unfair.
Legal Tips to Strengthen Your Case
If you believe you’ve been unfairly dismissed, taking the right steps early can make a big difference. Here are some key tips to help support your claim:
- Document Everything: Keep emails, performance reviews and records of disciplinary action.
- Understand Your Contract: Review employment agreements and workplace policies.
- Avoid Emotional Responses: Stay professional and seek advice early.
- Consult a Lawyer: Legal support can clarify your options and build a strong case.
Common Employer Defences
Employers may use a variety of legal arguments to justify a dismissal. Being aware of these defences can help you prepare an informed response:
- The employee was underperforming and given fair warnings
- The dismissal followed a fair disciplinary process
- It was a genuine redundancy
- The employee failed to follow reasonable instructions or committed misconduct
Employers often rely on documented procedures and witness statements to defend against claims.
Final Thoughts
Understanding what unfair dismissal means in Australia helps you identify when your rights have been violated. Whether you suspect your termination was unreasonable or you need help navigating the Fair Work system, it’s essential to act quickly and seek reliable legal guidance. Knowing your rights is the first step. Taking action to enforce them is the next.
Need Help with an Unfair Dismissal Claim?
At Rotstein Commercial Lawyers, we provide expert advice and representation in unfair dismissal matters. Our employment law specialists can assess your case, lodge your application and represent you throughout the conciliation or hearing process.
Don’t face unfair dismissal alone. Call us today on +61 3 9604 7888 or visit our Contact Us page to book a confidential consultation. Let us help you protect your rights and secure a fair outcome.
