Unfair dismissal

Learn about the steps an employee can take if they believe their termination is unfair. This could include making an application for unfair dismissal.

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Unfair dismissal

Unfair dismissal is when an employee is dismissed from their job in a way that is:

  • harsh, unjust, or unreasonable
  • not a genuine redundancy
  • if the employer is a small business, not consistent with the Small Business Fair Dismissal Code.

Tip: Different dismissal rules for small businesses

If a small business can show that they followed the Small Business Fair Dismissal Code, the Fair Work Commission will find the dismissal to be fair.

Download the Small Business Fair Dismissal Code and checklist Small Business Fair Dismissal Code and checklist.

The Fair Work Commission (Commission) decides on cases of unfair dismissal. When deciding if a dismissal was harsh, unjust, or unreasonable, they consider things such as:

  • whether there was there a valid reason for the dismissal
  • whether the employee was given a reason and a chance to respond
  • whether the decision to dismiss the employee was an extreme response
  • anything else they deem relevant.

For more examples and information on what is considered harsh, unjust or unreasonable, visit the Commission's What is unfair dismissal? page.

What counts as dismissal?

‘Dismissal’ is when the employer tells their employee that they no longer have a job. Not all dismissals are unfair.

In some cases, if the employer's behaviour forces an employee to resign, that might also be a dismissal. This is often called constructive dismissal.

To learn more, go to the Fair Work Commission's What is unfair dismissal? page.

Applying for unfair dismissal

We don’t investigate unfair dismissal complaints. If you think you’ve been unfairly dismissed, you need to apply to the Commission within 21 days of your dismissal.

To be eligible to apply for unfair dismissal, you must:

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.

Check whether you can apply for unfair dismissal with the Commission’s eligibility quiz.

Example: Applying for unfair dismissal

Josie has worked as a part-time barista at a small cafe for 2 years. During her shift, her manager tells her that this is her last shift and not to come in tomorrow.

Josie asks why her employment is ending and her manager says it’s because they’re not happy with her performance. Josie is surprised by this as she hasn’t been given any warnings or feedback about her performance.

Josie checks the Commission’s unfair dismissal eligibility quiz and learns she is eligible to lodge an unfair dismissal application. She also learns that she must lodge her application within 21 days of her dismissal.

Visit the Commission's website to:

Small business employers

Small businesses have different rules for dismissal.

The Small Business Fair Dismissal Code Small Business Fair Dismissal Code (the Code) provides protection against any unfair dismissal claims that are lodged with the Commission. The Commission will rule that the dismissal was fair if the employer can provide evidence that the Code was followed before dismissing the employee.

A small business is defined as any business with fewer than 15 employees.

To figure out whether a business is a small business, count all employees employed at the time of the dismissal including:

  • the employee and any other employees being dismissed at that time
  • regular and systematic casual employees employed by the business at the time of the dismissal
  • employees of associated entities, including those based overseas.

The size of the business is counted the earliest of:

  • when the employee is told their employment has been terminated, or
  • when the employee is given their notice of termination.

Example: Following the Small Business Fair Dismissal Code

Karolina runs a small pharmacy and has 8 employees. Jason has been working for Karolina as a full-time pharmacy assistant for over a year.

Recently, Karolina has had some concerns about Jason's performance. Over the past month, Jason has been getting to work 45 minutes late and taking unauthorised breaks.

Karolina has had an informal discussion with Jason about the issues, but Jason continues to arrive late and take unapproved breaks.

Karolina wants to know what next steps she can take. She learns about the Small Business Showcase and the information available to her. This includes:

Karolina uses this information and follows the steps in the Code. She saves a copy of the Code and other documents related to Jason's performance. Karolina knows she may need to show the Commission she followed the Code if an unfair dismissal claim is made.

Tip: Check out our Small Business showcase

Find tools, resources and information you might need on our Small Business Showcase.

Other dismissals

Employees can also apply to the Commission if they’ve been dismissed because of:

  • a breach of general protections, or
  • unlawful termination.

For more information, visit Protections at work.

Regulated workers can apply to the Commission for a remedy for unfair deactivation or unfair termination. For more information, go to the Commission's website at Unfair deactivation or termination for regulated workers.

Source reference for page: Fair Work Act 2009 sections 23, 382–388, 394

Tools and resources

Related information

Tags
Ending employment (eg. final pay, notice)
Unfair dismissal