This guide breaks down what constitutes unfair dismissal and what steps you can take to seek justice.
What Is Unfair Dismissal?
Under Australian Employment Law, unfair dismissal occurs when an employee is terminated in a manner that is harsh, unjust, or unreasonable. This can include situations where:
There was no valid reason for dismissal
You were not given an opportunity to respond to allegations
Proper procedures were not followed
The punishment was disproportionate to the issue
It’s worth noting that not all dismissals qualify as unfair. For instance, genuine redundancies or dismissals during a probation period may not be covered.
Am I Eligible to Make a Claim?
Before taking action, you must determine whether you’re eligible to lodge an unfair dismissal claim. In Australia, you generally need to:
Have completed a minimum employment period (usually 6 months, or 12 months for small businesses)
Be covered by a modern award, enterprise agreement, or earn below the high-income threshold
Be an employee (not an independent contractor)
Understanding these criteria is essential before proceeding under Employment Law.
Seek Immediate Advice
If you believe you’ve been unfairly dismissed, your first step should be to seek professional advice. This could be from:
An employment lawyer
A union representative
Legal aid services
Acting quickly is crucial, as strict time limits apply. In most cases, you have only 21 days from the date of dismissal to lodge a claim.
Lodge a Claim with the Fair Work Commission
The primary body handling unfair dismissal claims in Australia is the Fair Work Commission (FWC). You can submit an application online, outlining:
The details of your dismissal
Why you believe it was unfair
Any supporting evidence
The FWC will review your case and may arrange a conciliation conference to help both parties reach an agreement.
Participate in Conciliation
Conciliation is an informal process where both you and your employer attempt to resolve the dispute with the help of a mediator. This is often the fastest and least stressful way to reach a resolution.
Possible outcomes include:
Reinstatement to your former position
Financial compensation
A negotiated settlement
Many cases are resolved at this stage without proceeding further.
Formal Hearing (If Needed)
If conciliation fails, your case may proceed to a formal hearing. During this process:
Both parties present evidence
Witnesses may be called
A decision is made by a Commission member
This stage is more formal and may require legal representation. The outcome could result in compensation or reinstatement, depending on the circumstances.
What Remedies Are Available?
Under Australian Employment Law, there are two main remedies for unfair dismissal:
ReinstatementThis means getting your job back, often with back pay for lost wages. It’s considered the preferred remedy but is not always practical.
CompensationIf reinstatement isn’t suitable, you may be awarded financial compensation. This is typically capped at a maximum amount based on your earnings.
Common Mistakes to Avoid
When dealing with unfair dismissal, avoid these common pitfalls:
Missing the 21-day deadline
Failing to gather evidence (emails, contracts, witness statements)
Not seeking legal advice early
Posting about your case on social media
Being proactive and organised can significantly strengthen your claim.
Understanding Employment Law empowers employees to stand up for their rights. It also encourages employers to maintain fair and lawful workplace practices.
Whether you’re navigating a dismissal or simply want to protect your position, knowledge is your strongest asset.
If you believe you’ve been unfairly dismissed, don’t wait.
