Unfair dismissal

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

On this page:

Applying for unfair dismissal

The Fair Work Commission (the Commission) decides on cases of unfair dismissal.

Employees need to apply to the Commission within 21 days of the dismissal taking effect. The 21 day period starts the day after the dismissal.

If you think you have been unfairly dismissed, you should contact the Commission as soon as possible.

Visit the Commission's website to:

Minimum employment period

Employees need to be employed for at least 6 months before they can apply for unfair dismissal.

Employees working for a small business need 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.

The 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 less 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 (not all casual employees)
  • 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.

Source reference: Fair Work Act 2009 s.23, 121 and 123

Other dismissals

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

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

Visit our Protections at work page for more information.

Source reference: Fair Work Act 2009 s.383 - 384 and 394

Tools and resources

Related information

Help for small business

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