Unfair Dismissal

Unfair dismissal is termination of employment that is harsh, unjust or unreasonable. Any employee covered by the Fair Work Act 2009 (Cth) and not in their statutory probation period is protected from unfair dismissal. Before being dismissed, these employees should be afforded procedural fairness, which requires the employer to provide written notice to the employee about the issues that may lead to termination and a proper opportunity to respond, with a support person if they choose. If the issue is misconduct, the employer must ensure they have ample evidence to prove that the misconduct occurred and that it was serious enough to justify dismissal. If the issue is underperformance, the employer should only terminate an employee’s employment if, after being given ample time and information about the underperformance, plus proper support to improve, the employee’s performance has not improved.

Employees covered by the Fair Work Act 2009 (Cth) are protected from unfair dismissal if they have been employed for a minimum period. For an employee of a business with fewer than 15 employees, the minimum period of employment is 12 months. For all other employees, the minimum employment period is six months.
All employees in the ACT are covered by the Fair Work Act 2009 (Cth). Employees working in other state jurisdictions, such as NSW and Victoria, are only covered if they work for certain organisations, such as companies incorporated under the Corporations Act 2001 (Cth).

You must lodge your unfair dismissal application with the Fair Work Commission no later than 21 days after your termination takes effect, meaning the last day you work. This timeline is very strict and the Commission will only grant an extension of time in exceptional circumstances.

In an unfair dismissal application, you can only claim compensation for any financial loss you incur as a result of the dismissal, up to a certain limit. The limit is the lower of 6 months of your pay or the compensation cap, which in 2026/2027 is $95,050. These maximums are only awarded in the most serious of cases. Most of the time, unfair dismissal matters settle or finalise with compensation equating to just weeks of the person’s pre-termination pay. You also have an obligation to minimise your loss by making genuine attempts to find another job. If you don’t do this, your compensation is likely to be reduced.

Sometimes. This is called ‘constructive dismissal’ and applies where you were forced to resign because of conduct, or a course of conduct, engaged in by your employer. This includes acts or omissions by the employer that operate to leave you with no real or effective choice but to resign. An example of this is where the employer fails to pay you for a period of time.

This depends on the length of your probation. Some probationary periods are equal to the statutory minimum that the employee is required to work before being protected from unfair dismissal. For an employee of a business with fewer than 15 employees, the minimum period of employment is 12 months. For all other employees, the minimum employment period is six months. You only have to reach this minimum to make an unfair dismissal claim, even if the probation period in your contract is longer.

You need evidence of the dismissal, including when it took effect (in other words, your last day of work). This could be a termination letter, or emails or text messages. You also need evidence of the reason for dismissal, which is likely to be in the termination letter, but if not, it may be in other emails or warning letters. Then you need evidence that shows that the dismissal was harsh, unjust or unreasonable. For example, this may be evidence that the reasons provided for dismissal were untrue, or evidence that you were not given adequate notice of the reasons or an opportunity to respond or improve. You might include records of prior conduct or appraisals, as well as evidence of your personal circumstances that show the impact of the dismissal. As you are required to minimise the your loss you incur from the dismissal, you should also provide evidence of your attempts to find another job.

The Fair Work Commission is set up to be less formal and more accessible than courts. This means that an employee can lodge and manage their unfair dismissal claim without a lawyer. However, bringing these claims can be daunting, particularly when there is a power imbalance between you and the employer. Therefore, it is recommended that you at least get some preliminary legal advice before you commence your claim. The right lawyer on your side can be an important ally in an unfair dismissal claim, even if they simply guide you in the background as the process progresses.