Unfair Dismissal Claims Explained: Your Australian Guide

§1What Is Unfair Dismissal?

Unfair dismissal occurs when an employee is dismissed from their job in a manner that is harsh, unjust, or unreasonable. In Australia, the Fair Work Act 2009 (Cth) provides a framework that protects eligible employees from losing their jobs without proper reason or process.

It's important to understand that not every dismissal is an unfair dismissal — even if it feels that way. The law looks at the specific circumstances, including whether there was a valid reason for the dismissal and whether the employer followed a fair procedure.

§2Who Can Make an Unfair Dismissal Claim?

To be eligible to make an unfair dismissal claim, you generally need to meet the following criteria:

• Minimum employment period: You must have been employed for at least 6 months (or 12 months if your employer is a small business with fewer than 15 employees).
• Covered by the national system: Most employees covered by the Fair Work Act can access unfair dismissal protections. Some state public sector employees may fall under separate state laws.
• Earnings threshold: If your annual earnings exceed the high-income threshold (adjusted periodically), you may only be eligible if you are covered by a modern award or enterprise agreement.
• Type of dismissal: Your employment must have been terminated by your employer, or you must have been forced to resign due to your employer's conduct (known as constructive dismissal).

§3What Makes a Dismissal 'Unfair'?

The Fair Work Commission considers several factors when assessing whether a dismissal was unfair:

• Whether there was a valid reason related to your capacity or conduct
• Whether you were notified of the reason
• Whether you were given an opportunity to respond
• Whether you had a support person present during any discussions
• Whether warnings were given for performance issues
• The size of the business and its human resources capacity

§4How to Lodge a Claim

If you believe you've been unfairly dismissed, you must act quickly. Applications must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. Missing this deadline can result in your claim being dismissed, though extensions may be granted in exceptional circumstances.

Steps to take:

1. 1.Gather documentation — contracts, payslips, written warnings, and any correspondence about your dismissal
2. 2.Complete the unfair dismissal application form on the Fair Work Commission website
3. 3.Pay the applicable filing fee (fee waivers may be available)
4. 4.Attend conciliation — most matters are resolved at this stage
5. 5.If unresolved, proceed to a formal hearing or conference

§5Possible Outcomes

If your claim is successful, the Fair Work Commission may order:

• Reinstatement to your former position (or a comparable role)
• Compensation of up to 26 weeks' pay (capped at the high-income threshold)

Note that reinstatement is the primary remedy under the legislation, though compensation is more commonly awarded in practice.

§6Small Business Employees

Employees of small businesses (fewer than 15 employees) are assessed against the Small Business Fair Dismissal Code. Employers who follow this Code correctly may have a defence to an unfair dismissal claim, so it's important to understand the specific rules that apply to your situation.

§7Q: Can I claim unfair dismissal if I resigned?

A: Possibly — if you were forced to resign due to your employer's conduct, this may be treated as a constructive dismissal and could still be grounds for a claim.

§8Q: What's the difference between unfair dismissal and unlawful dismissal?

A: Unfair dismissal relates to the fairness of the process and reason. Unlawful dismissal (also called general protections claims) covers situations where you were dismissed for a prohibited reason, such as exercising a workplace right or taking parental leave.

§9Q: Do I need a solicitor to lodge a claim?

A: You are not required to have legal representation, particularly at conciliation. However, speaking with a solicitor before filing can help you understand your position and improve your chances of a good outcome.

§10Q: What if my employer says I was made redundant?

A: A genuine redundancy is not considered an unfair dismissal. However, if the redundancy was not genuine — for example, if your role still exists — you may still have grounds to claim.

This article provides general legal information only and does not constitute legal advice. Laws may vary between states and territories, and individual circumstances differ. Please consult a qualified solicitor for advice specific to your situation.

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