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Unfair Dismissal

If you have been dismissed from your employment, you may be able to make an unfair dismissal claim.

A dismissal is said to be unfair when it is found to be harsh, unjust, or unreasonable by the Fair Work Commission (FWC). However, not all employees have access to unfair dismissal.

The FWC will consider whether there was a valid reason for the dismissal, and whether the employee was afforded procedural fairness leading up to dismissal.  

Do I need a lawyer for an unfair dismissal?

It is a good idea to get a lawyer for your unfair dismissal claim. A lawyer can provide you with advice in relation to the claim, and help with drafting submissions and gathering evidence. They can also communicate and negotiate with the other side on your behalf and assist with resolving the dispute. 

What is unfair dismissal?

A dismissal is said to be unfair when it is found to be harsh, unjust, or unreasonable by the Fair Work Commission (FWC).

Whether a dismissal is unfair will depend on the particular facts, including the reason for the dismissal and the procedure followed by the employer.

Can I make a claim for unfair dismissal?

To be able to make an unfair dismissal claim, a person must:

  • have been an employee,
  • have been dismissed at the initiative of the employer,
  • have six months’ service if working for a large employer (15 employees or more). 
  • have one year of service if working for a small employer (fewer than 15 employees). Service does not include periods of unpaid leave.
  • have earned below the high-income threshold. From 1 July 2026, the high-income threshold was $190,100. The amount is indexed and goes up on 1 July each year. An employee who earns above the threshold may still make an application if they are covered by an award or agreement.

Eligibility issues, such as award coverage and earnings, are not always straightforward, and the above points often require professional advice.

When do I have to apply for unfair dismissal?

To make an unfair dismissal claim, an employee must lodge an application with the FWC within 21 days of the dismissal taking effect. This deadline is strict. The FWC may extend the time to make a claim, but only in exceptional circumstances. 

How does the FWC determine an unfair dismissal?

In determining whether the dismissal was unfair, the FWC will consider:

  • whether there was a valid reason for termination
  • whether the employee was notified of that reason
  • if the reason related to capacity or conduct, whether the employee had an opportunity to respond to the reason 
  • whether the employee was given warnings about their poor performance
  • whether there was an unreasonable refusal to have a support person present in discussions relating to the dismissal
  • the size of the employer’s enterprise and its human resources capacity
  • any other matter the FWC considers relevant.

What is constructive dismissal?

You must be dismissed in order to make an unfair dismissal application. This generally means that you were terminated at the initiative of the employer.

However, the Fair Work Act 2009 (FW Act) also recognises that a person may have resigned from the employment, but they were forced to do so due to the employer’s conduct. It is generally quite a high threshold to make out. 

Can I make an unfair dismissal claim if I was on a fixed-term contract?

An employee engaged for a specified period of time or engaged for a specified task and whose time has expired is taken not to have been dismissed.

However, a fixed-term contract that has a notice of termination clause may not be regarded a specified term contract. This point is tricky, and it’s best to get legal advice. 

Can I make an unfair dismissal claim if I was demoted?

It’s possible. A person who suffers a significant reduction in pay or responsibilities may be able to show that they have been dismissed, and therefore able to make an unfair dismissal claim. 

Can I make an unfair dismissal claim if I am a casual?

Casuals are subject to the same period of service requirements as permanent staff. A casual employee can make an unfair dismissal claim if they have at least six months’ service for a large employer or 12 months’ service for a small business.

However, a casual employee’s period of service will not count unless they had a reasonable expectation of continuing, regular and systematic employment.

Can I make an unfair dismissal claim if I was made redundant?

A genuine redundancy is a defence to an unfair dismissal claim. 

The FW Act provides that a person’s dismissal is considered a genuine redundancy if:

  • the employer no longer required your job to be performed by anyone; 
  • the employer complies with any consultation obligations in an applicable award or agreement. 

 

The FW Act further provides that a person’s dismissal is not a genuine redundancy if they could have been redeployed. 

We recommend speaking to an expert to determine whether these requirements have been met.

Jurisdictional objections

A jurisdictional objection is where an employer says that the FWC does not have the power to deal with the dispute. There are several grounds for a jurisdictional objection in an unfair dismissal application:

Jurisdictional objections can be critical because, if successful, they may prevent the application from proceeding any further.

  • The Application is out of time (i.e., the application has not been made within 21 days).
  • The Applicant was not an employee (for example, they were an independent contractor).
  • The Applicant was not dismissed (i.e., they were not terminated at the initiative of the employer. For example, they resigned.)
  • The dismissal was a genuine redundancy (please refer to Henry Bournes’ redundancy page).
  • The Applicant was not employed for the minimum employment period.
  • The Applicant earned above the high-income threshold and was not covered by an award or agreement.
  • The employer is a small business employer and complied with the Small Business Dismissal Code.

What if I was employed by a small business?

If you have more than 12 months’ service with a small business employer, they are required to comply with the Small Business Dismissal Code. You can make an unfair dismissal application if you believe the code has not been complied with. 

What if I earn above the high-income threshold?

If you earn above the high income threshold, it’s likely that you cannot make an unfair dismissal claim unless you are covered by an award or agreement. It may be worthwhile seeking legal advice about whether a modern award or agreement applies to your employment. 

What can I get by making an unfair dismissal claim?

If the dismissal is found to be unfair, the FWC can order:

  • Compensation, though the FWC can only award a maximum amount of six months’ pay or half the high-income threshold, whichever is less. In awarding compensation, the FWC considers the amount the employee would have received had they not been dismissed, less income earned since termination. The FWC will not compensate for hurt or humiliation, and will also consider whether and to what extent the employee sought to mitigate (reduce) their loss.
  • Reinstatement, though this is uncommon. The FWC indicates that this is awarded in fewer than 1% of applications.
  • It is also possible to come to other agreed outcomes in an unfair dismissal dispute settlement process. 

Unfair dismissal claims can be difficult to manage on your own. If you require advice or assistance in relation to an unfair dismissal claim, please click ‘book now’ for a confidential consultation with Henry Bournes. This information only relates to employees under the Fair Work Act (Cth) 2009. It is information only and is not legal advice.

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