Unfair Dismissal in Australia: When Can You Take Your Employer to the Fair Work Commission?

Unfair dismissal in Australia happens when the Fair Work Commission (FWC) decides a dismissal was harsh, unjust or unreasonable, was not a genuine redundancy, and did not comply with the Small Business Fair Dismissal Code where that code applies. If you meet eligibility rules on minimum service, income level, and national system coverage, you can lodge an unfair dismissal application with the FWC within 21 days of being dismissed.

Unfair Dismissal in Australia: What Is Unfair Dismissal?

Under section 385 of the Fair Work Act 2009, the FWC finds unfair dismissal if:​

• You were dismissed (your employment was terminated at the employer’s initiative, or you were forced to resign).

• The dismissal was harsh, unjust or unreasonable.

• It was not a case of genuine redundancy.

• If your employer is a small business (fewer than 15 employees), they did not follow the Small Business Fair Dismissal Code.​

“Harsh” usually means the penalty is too severe for the misconduct or the dismissal has a very severe personal/economic impact. “Unjust” means you did not do what you were accused of. “Unreasonable” means the evidence did not support dismissal.​

Who Can Apply to the Fair Work Commission?

To bring an unfair dismissal claim, you must satisfy several eligibility criteria.​

• National system employee: You must be employed in the national workplace relations system (most private-sector employees are).

• Minimum employment period:

  • 6 months continuous service for employers with 15 or more employees.

  • 12 months for small business employers (fewer than 15 employees, counting regular casuals).​

• Income threshold or industrial coverage:

  • You must either earn less than the high-income threshold (e.g. AUD 175,000 from 1 July 2024, indexed each year), or

  • Be covered by a modern award or enterprise agreement even if you earn above the threshold.​

• Time limit: You must apply within 21 days after the dismissal takes effect, unless the FWC grants an extension in exceptional circumstances.​

Casuals can be eligible if their work was regular and systematic and they had a reasonable expectation of continuing employment.​

When Is a Dismissal “Harsh, Unjust or Unreasonable”?

The FWC must consider specific factors in section 387 of the Fair Work Act when deciding whether the dismissal was harsh, unjust or unreasonable.​

Key questions include:

• Was there a valid reason related to your conduct, capacity, or performance (not trivial, biased, or speculative)?​

• Were you told the reason and given a chance to respond before the decision?​

• If it was about poor performance, had you been warned and given an opportunity to improve?​

• Were you allowed a support person in any meeting about the dismissal, if requested?​

• How did the process and outcome affect you personally and economically?​

A dismissal may still be unfair even where there is some misconduct if summary dismissal was disproportionate in the circumstances.​

Genuine Redundancy and Small Business Code

You generally cannot succeed in unfair dismissal if it was a genuine redundancy, meaning:​

• Your job was no longer required to be done by anyone due to operational changes.

• The employer complied with any consultation obligations in your award or agreement.

• It was not reasonable to redeploy you within the enterprise or associated entities.​

For small businesses (fewer than 15 employees), the dismissal must also comply with the Small Business Fair Dismissal Code. For example:​

• Instant dismissal without prior warning can be fair if the employer reasonably believes there is serious misconduct like theft, violence, or fraud and they investigate.​

• For performance issues, the employer must warn you, explain the problem, and give a chance to improve.​

If the FWC finds the dismissal inconsistent with this code, a small business can still lose an unfair dismissal case.​

Remedies: What Can the Fair Work Commission Do?

If the FWC finds you were unfairly dismissed, it can order:​

• Reinstatement: Getting your job back (or a similar role), sometimes with back pay and continuity of service.

• Compensation: If reinstatement is impractical, compensation is capped (e.g. the lesser of 26 weeks’ pay or half the high-income threshold—around AUD 87,500 as of January 2025, but indexed).​

When calculating compensation, the FWC considers:​

• Your length of service and likely future employment.

• Any wages you have earned since dismissal (mitigation).

• Any termination payments you already received (notice, redundancy).

• The impact on the employer’s business viability.​

The FWC cannot award punitive or “exemplary” damages in unfair dismissal cases.​

How to Lodge an Unfair Dismissal Application

If you think you were unfairly dismissed and meet the criteria, the usual steps are:​

1. Check your eligibility against the minimum employment period, income threshold/award coverage, and time limit.

2. Gather evidence: contract, payslips, emails, performance reviews, warning letters, notes of meetings.

3. Complete the FWC unfair dismissal form (UFP) online via the FWC website, within 21 days of dismissal.

4. Participate in conciliation: The FWC usually arranges a telephone conciliation to help parties negotiate settlement (e.g. compensation, statement of service).

5. If unresolved, the matter proceeds to a conference or hearing, where the FWC member hears evidence and makes a decision.​

Many employees and employers obtain advice from employment lawyers or community legal centres before or during this process.​

When You Cannot Claim Unfair Dismissal

Even if you feel the dismissal was unfair, you generally cannot bring an unfair dismissal claim if:​

• You are a genuine contractor (not an employee).

• You are a national system exempt employee (certain state public sector roles, etc.).

• You have not completed the minimum employment period.

• You filed after 21 days, and no exceptional circumstances exist.

• Your dismissal is a genuine redundancy, and redeployment was not reasonable.

• You are covered instead by other protections (e.g. general protections/adverse action, discrimination laws) rather than unfair dismissal.

In some cases, if unfair dismissal is not available, employees may still have rights under general protections (adverse action) if the dismissal was because of workplace rights, discrimination, or industrial activity.​

Useful Official Links (External)

For current rules, forms, and examples, employees in Australia can refer to:

• Fair Work Ombudsman – Unfair dismissal:
  https://www.fairwork.gov.au/ending-employment/help-with-termination/unfair-dismissal​

• Fair Work Commission – Unfair dismissal applications:
  https://www.fwc.gov.au (search “unfair dismissal application”)​

• Law Society / Community legal centres employment pages for state-based guidance:
  e.g. NSW Law Society – Recognising unfair dismissal​

These sites provide step-by-step application guidance, eligibility tools, and contact details for free or low-cost legal advice.​