Unfair dismissal in Australia affects thousands of workers every year, and most of them have no idea they have legal options. Losing your job is stressful enough. Finding out it may have been unlawful makes it worse.
But here’s the thing: the law gives you real tools to fight back, and more people win these cases than you might expect.
If you’ve recently been let go and something about it doesn’t sit right, keep reading. This might be more useful than anything your employer told you on the way out the door.
Fair Work Commission data consistently shows unfair dismissal applications are among the most lodged matters in Australian workplace law. You are not alone, and you are not without options.
What Counts as Unfair Dismissal in Australia
Not every termination is unfair in the legal sense. Under the Fair Work Act 2009, a dismissal is considered unfair if it was harsh, unjust, or unreasonable. The Fair Work Commission looks at several factors when making that assessment.
These include whether there was a valid reason for the dismissal, whether you were notified of that reason, and whether you were given a genuine opportunity to respond before the decision was made. If your employer skipped those steps, that matters.
It also matters how the dismissal was carried out. Being walked out of the building without warning, being dismissed by text message, or being let go in a way that was humiliating or disproportionate to the alleged conduct are all factors a tribunal will take seriously.
Who Is Eligible to Make an Unfair Dismissal Claim
This is where a lot of people get tripped up. Not everyone is eligible, and eligibility depends on a few key criteria.
You must be an employee covered by the national workplace relations system, which covers most private sector workers in Australia.
You must have completed the minimum employment period, which is six months for businesses with 15 or more employees, and 12 months for small businesses with fewer than 15 employees.
You also need to earn below the high income threshold, which is updated each financial year by the Fair Work Commission. If you earn above that threshold and are not covered by a modern award or enterprise agreement, the unfair dismissal pathway may not apply to you, though other options may still be available.
Casual employees can also make unfair dismissal claims, provided they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment.
Unfair Dismissal vs Genuine Redundancy
One of the most common defences an employer will raise is that the dismissal was a genuine redundancy. It sounds convincing, but it has a specific legal meaning in Australia.
A redundancy is only genuine if the employer no longer required the job to be done by anyone, followed any applicable consultation obligations under an award or enterprise agreement, and considered redeployment options within the business or an associated entity.
If your role was made redundant but someone else was quietly hired to do the same work shortly after, that is not a genuine redundancy.
If your employer never consulted you as required by your award, that is not a genuine redundancy either. The label your employer puts on a termination does not determine its legality.
The 21-Day Rule You Cannot Afford to Miss
This is the most important practical point in this entire article. You have 21 days from the date your dismissal takes effect to lodge an unfair dismissal application with the Fair Work Commission.
Miss that deadline and you will almost certainly lose the right to make a claim, regardless of how strong your case is. The Commission can grant extensions in exceptional circumstances, but these are rarely approved and are not something to rely on.
Lodge first, gather evidence second. The application itself is straightforward and can be completed online through the Fair Work Commission website. Getting legal advice while your application is being processed is perfectly fine.
What Happens After You Lodge a Claim?
Once your application is lodged, the process typically follows these steps.
The Commission will notify your employer, who will have an opportunity to respond. The matter is then referred to conciliation, which is an informal, confidential process where a Commission conciliator helps both parties try to reach a settlement. The vast majority of unfair dismissal matters are resolved at this stage without ever going to a formal hearing.
If conciliation does not resolve the matter, it proceeds to a conference or hearing before a Commission member who will make a binding decision.
Outcomes can include reinstatement to your former role, though this is relatively rare in practice, or compensation of up to 26 weeks’ pay, capped at half the high income threshold.
What to Do Right Now If You Think You Were Unfairly Dismissed
Start by writing down everything you remember about how the dismissal happened, including dates, what was said, who was present, and any documents you were given. Do this while the details are fresh.
Gather any relevant documents you have access to, such as your employment contract, payslips, performance reviews, and any written communications about your role or conduct.
Do not access your former employer’s systems after your dismissal to retrieve documents, as this can create legal problems of its own.
Then get advice. Community Legal Centres Australia offers free employment law advice in many parts of the country, and many private employment lawyers offer an initial consultation to help you understand where you stand before committing to anything.
Conclusion
Unfair dismissal in Australia is a serious legal matter, and the system exists precisely because workers deserve a fair process when their employment ends. You do not need to simply accept a dismissal that felt wrong, rushed, or unjust.
The 21-day deadline is real and unforgiving, so if you have doubts about how your termination was handled, act quickly. Visit lawyer.com.au to get an employment lawyer who will give you a straight answer about whether you have a case and what your next steps should be.
FAQs
1. Can I make an unfair dismissal claim if I resigned?
In some circumstances, yes. If you were effectively forced to resign due to your employer’s conduct, this may be treated as a constructive dismissal. You would need to show that your employer’s behaviour made continuing employment unreasonable.
2. Does unfair dismissal apply to workers on probation?
Only if you have completed the minimum employment period, which is six months for larger employers and 12 months for small businesses. If you are dismissed during your probation period and have not reached that threshold, unfair dismissal does not apply, though other general protections may.
3. Can my employer dismiss me for poor performance?
Yes, but the process matters. Your employer must have warned you about the performance issues, given you a reasonable opportunity to improve, and allowed you to respond before making a final decision. A dismissal for performance without proper process can still be found unfair.
4. What is the difference between unfair dismissal and unlawful termination?
Unfair dismissal relates to how a dismissal was carried out. Unlawful termination covers situations where a dismissal was for a prohibited reason, such as discrimination, union membership, or exercising a workplace right. Both can give rise to separate claims.
5. Will making an unfair dismissal claim affect my chances of getting a new job?
Fair Work proceedings are generally confidential at the conciliation stage, and most employers do not conduct background checks that would reveal a Commission application. There is no legal obligation to disclose that you have made a claim to a prospective employer.