Losing your job is never easy, especially when you feel like it wasn’t fair. Maybe you were blindsided. Maybe you spoke up about something and were shown the door soon after.
Whatever the case, unfair dismissal is a real issue in Australia, and if it happens to you, there are laws that might help.
This post covers what unfair dismissal looks like, the types of situations that qualify, what kind of compensation you might get, and how to make a claim.
If you’re not sure whether what happened to you was legal or not, this will help you decide what to do next.
What Is Unfair Dismissal?
Unfair dismissal happens when your employer fires you in a way that is harsh, unjust or unreasonable.
In legal terms, it means they didn’t follow the correct process, didn’t give you a chance to respond, or let you go without a valid reason. In Australia, this is covered under the Fair Work Act 2009.
You’re generally protected if you’ve been working for at least six months in a larger company or twelve months in a small business (less than 15 employees).
You also need to be covered by an award or enterprise agreement, or earn less than the high-income threshold (which is indexed annually).
Common Examples of Unfair Dismissal
To get a sense of what counts as unfair, here are a few common situations where people have successfully claimed compensation.
1. Fired Without Warning
Let’s say you’ve been working somewhere for a year. Your boss thinks your work is slipping but never says anything.
One day you’re called into a quick meeting and told your role has ended because you “aren’t performing.”
If you were never warned, never given a performance plan, and never given a real chance to improve, this is likely unfair dismissal.
2. Dismissed After Making a Complaint
Imagine you reported a safety issue or inappropriate behaviour. Suddenly, you start getting treated differently, and within weeks you’re told you’re no longer a good fit for the company.
This could be a case of adverse action, which is even more serious than unfair dismissal. It’s illegal to fire someone because they used a workplace right, such as making a complaint.
3. Casual Worker Fired Without Notice
Casuals don’t always have the same protections, but if you’ve been working regular hours for a long time and there was an expectation of ongoing work, you may still be protected.
Courts have found that long-term casuals who work predictable shifts can sometimes make unfair dismissal claims.
4. Poor Process in a Small Business
Small businesses in Australia have a special code they’re supposed to follow. They can fire someone without warning in certain serious cases, but only if they follow the Small Business Fair Dismissal Code.
If you were dismissed without a valid reason, or the employer didn’t give you a chance to explain your side, they may have broken the rules.
What Doesn’t Count as Unfair Dismissal
Not all job losses count as unfair dismissal. You probably won’t have a strong case if:
- You were genuinely made redundant and your role no longer exists
- You were fired for serious misconduct with evidence
- You were still in your minimum employment period
- You were a true casual with no expectation of ongoing work
However, even in these cases, there could be other claims available such as general protections or discrimination if the circumstances were wrong.
How Much Compensation Can You Get?
If the Fair Work Commission finds that you were unfairly dismissed, they will usually consider two outcomes: reinstatement or compensation.
- Reinstatement
Sometimes the Commission orders your employer to give you your job back. That includes any lost wages from the time you were dismissed to the decision date.
This is more common in public sector jobs but less likely in smaller businesses where the relationship is damaged.
- Compensation
More often, the employee receives compensation instead. This is capped at six months of your usual pay, based on your earnings before being dismissed. So if you were making $1,200 a week, the most you could be awarded is $31,200.
In reality, most payouts are lower. The average payout for unfair dismissal in Australia usually falls between $8,000 and $20,000. The final figure depends on several things, including:
- How unfair the dismissal was
- Whether the employer followed any process at all
- How quickly you found another job
- Whether trust could ever be restored
If you were partly at fault, or didn’t do much to find another job, that can reduce your payout.
Time Limit to Lodge a Claim
If you believe you were dismissed unfairly, you have just 21 days to file a claim with the Fair Work Commission. That time starts from the day your dismissal takes effect, not the date you received the letter.
Late applications are only accepted in rare circumstances, and you’ll need a strong reason for missing the deadline.
How to Lodge an Unfair Dismissal Claim
The process is more straightforward than you might think:
- Check eligibility: Make sure you meet the minimum service period and your employment type qualifies.
- Apply online: Lodge Form F2 at the Fair Work Commission website.
- Attend conciliation: This is a phone meeting where a Commission representative helps you and your employer try to resolve the issue without a hearing.
- Go to a hearing: If conciliation fails, the matter can go to a formal hearing. You don’t always need a lawyer, but it helps.
There is a small application fee, which is currently just over $80 (subject to change). Fee waivers are available if you are in financial hardship.
Conclusion
Losing your job without fair reason or process can be stressful and financially painful. The law in Australia is designed to prevent people from being treated unfairly, especially when employers skip steps or act impulsively.
If you think you were dismissed in a way that wasn’t right, it’s worth checking the Fair Work Commission website or speaking to a workplace advisor. You might be entitled to compensation or even your job back.
FAQs
1. Can I claim unfair dismissal if I was on probation?
Usually no, unless your probation period extended beyond the minimum employment period. For most businesses, you need to have worked at least 6 months (or 12 months for small businesses) to be eligible.
2. How long do I have to act after being fired?
You must file an unfair dismissal application within 21 calendar days from the date your dismissal took effect. This includes weekends and public holidays.
3. Can I be dismissed for taking too many sick days?
Not if your sick leave is supported by medical certificates. Dismissing someone for using their legal entitlements, such as sick leave, could lead to an unfair dismissal or general protections claim.
4. Do I need a lawyer to make a claim?
No. You can represent yourself throughout the Fair Work Commission process. However, speaking to a legal advisor or a workplace rights group can improve your chances, especially if your case is complex or involves retaliation.
5. How do I prove that my dismissal was unfair?
Keep written records such as emails, meeting notes, rosters, contracts, and performance reviews. If your employer gave no warnings or formal documents, that can also work in your favour.