Being dismissed from your job can be devastating. Understanding your rights under Australian employment law is the first step toward seeking justice and fair compensation.
What Constitutes Unfair Dismissal?
Under the Fair Work Act 2009, a dismissal is unfair if it was harsh, unjust, or unreasonable — and was not a genuine redundancy or, where applicable, did not comply with the Small Business Fair Dismissal Code. The Fair Work Commission considers multiple factors: whether there was a valid reason for dismissal related to the employee's capacity or conduct; whether the employee was notified of that reason; whether they were given a genuine opportunity to respond before the decision was made; whether they were unreasonably refused a support person at any disciplinary meeting; and whether warnings had been given for previous conduct or performance issues. A dismissal can be harsh without being technically unlawful — courts and the Commission have consistently found that disproportionate outcomes, even for genuine misconduct, can constitute harsh dismissal warranting a remedy.
Eligibility Requirements
To bring an unfair dismissal claim, you must have completed the minimum employment period — six months for employees of businesses with 15 or more employees, or twelve months for small business employees (fewer than 15 people). You must also be covered by the national workplace relations system, which covers most private sector employees. Casual employees may be eligible if they worked on a regular and systematic basis with a reasonable expectation of continued employment. Employees who earn above the high income threshold (currently $175,000 per year) are generally excluded unless covered by a modern award or enterprise agreement. Independent contractors, volunteers, and some state public sector employees fall outside the national system and must seek advice about their state equivalents.
The 21-Day Time Limit
You have only 21 calendar days from the date your dismissal took effect to lodge an application with the Fair Work Commission. This deadline is strict — extensions are granted only in exceptional circumstances where the Commission is satisfied it is fair and just to do so. The date the dismissal took effect is not necessarily the day you found out, but the day you stopped working — if you worked out a notice period, it is the last day of that period. Documenting everything from the moment of dismissal — what was said, what you received in writing, when your workplace access was cut off — will help establish the precise date. If you are uncertain, seek advice immediately and err on the side of lodging early.
Small Business Dismissals — Different Rules Apply
If your employer has fewer than 15 employees, the Small Business Fair Dismissal Code applies. This Code requires small business employers to follow specific procedural steps before dismissing for conduct or performance reasons: providing a clear written warning that the employee's job is at risk, allowing an opportunity to respond, and giving a reasonable time to improve. However, summary dismissal (immediate, without notice) is permitted for serious misconduct such as theft, serious harassment, or actions that endanger safety. Employees of small businesses dismissed for genuine redundancy must still receive notice and, where eligible, redundancy pay. The 12-month minimum employment period means many small business employees have limited access to unfair dismissal, but general protections claims (see below) remain available.
What Remedies Are Available?
The Fair Work Commission can order reinstatement or compensation. Reinstatement returns you to your former position on the same terms and conditions; the Commission can also order back-pay covering the period between dismissal and reinstatement. Compensation is capped at 26 weeks' pay or half the high income threshold, whichever is lower — but the Commission will discount for any contribution your conduct made to the dismissal and for any failure to mitigate your loss by seeking alternative employment. In practice, compensation is more common than reinstatement because many employees do not wish to return to a workplace where they experienced unfair treatment.
The Conciliation Process
Most unfair dismissal matters resolve through conciliation before any formal hearing. A Fair Work Commission conciliator facilitates a confidential negotiation — typically by phone — during which both parties can explore settlement. Neither side is required to agree, but around 70–80% of conciliated matters settle. A settlement can include financial compensation, an agreed reference, changes to the termination record, or other terms that matter to the employee. If conciliation fails, the matter proceeds to arbitration where evidence is formally tested and the Commission makes a binding decision. Legal representation is permitted at arbitration, and the quality of preparation at this stage significantly affects outcomes.
General Protections — An Alternative Pathway
If you do not meet the eligibility threshold for unfair dismissal — for example because you are a casual or have not completed the minimum employment period — you may still have a remedy under the general protections provisions of the Fair Work Act (Part 3-1). General protections claims can be brought by any employee, regardless of tenure or income, provided the adverse action — including dismissal — was motivated by a prohibited reason. Prohibited reasons include exercising a workplace right (making a complaint, taking sick leave, requesting flexible work), engaging in industrial activity, or being subject to unlawful discrimination. The 21-day time limit applies equally to general protections claims involving dismissal. Where both pathways are potentially open, a lawyer can assess which provides the stronger cause of action given your specific facts. General protections also apply to conduct short of dismissal — demotions, pay cuts, or changes to duties may all be actionable.
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