Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
The Fair Work Commission (the Commission)
decides on cases of unfair dismissal.
Applying for unfair dismissal
Employees have to apply to the Commission within 21 days after their dismissal takes effect.
Minimum employment period
Employees have to be employed for at least 6 months before they can apply for unfair dismissal.
Employees working for a small business have to be employed for at least 12 months before they can apply.
If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
You can use the Commission’s eligibility quiz to see if you can apply for unfair dismissal.
Small business employers
Small businesses have different rules for dismissal. A small business is defined as any business with fewer than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis.
The Small Business Fair Dismissal Code (RTF 71.9KB) provides protection against unfair dismissal claims, where an employer follows the Code. The Commission will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this.
Employees can also apply to the Commission if they’ve been dismissed on the basis of:
- a breach of general protections or
- unlawful termination.
See the Protections at work page for more information.
Source reference: Fair Work Act 2009 (Cth) sections 383 - 384 and 394
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