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 of the dismissal taking effect. The 21 day period starts the day after the dismissal.
If you think you have been unfairly dismissed you need to contact the Commission as soon as possible.
Visit the Commission website to:
- learn more about unfair dismissal
- find out how to lodge the application form
- access free legal advice about unfair dismissal , if you’re eligible.
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.
The Small Business Fair Dismissal Code (DOCX 25.5KB) (PDF 220.4KB) 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.
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 (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
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 s.383 - 384 and 394
Boosting Apprenticeship Commencements wage subsidy
An employer under the Boosting Apprenticeship Commencements (BAC) wage subsidy can’t terminate an employee’s employment if they don’t agree to starting an apprenticeship or traineeship.
If an employee’s role is changed by their employer without the employee’s agreement, then it may be considered termination of employment. For example, a full-time employee being signed up to an apprenticeship without their consent.
If termination of employment occurs, an employee may be entitled to receive final pay entitlements. This may include unused annual leave and notice of termination.
Learn more about payment on termination on our Final pay page.
For more information about the BAC wage subsidy, including eligibility and payment amounts, go to Boosting Apprenticeship Commencements
on the Department of Education, Skills and Employment website.