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Who can make a claim

Under the the Fair Work Act 2009 or similar state legislation, you may have a claim for unfair dismissal with the Fair Work Commission (or similar State Industrial Relations Commission) if you were dismissed and the circumstances were unfair, unjust, unreasonable or harsh. The Commission will determine whether this was the case.

You're considered dismissed if your employment has been terminated on the employer’s initiative, or if you've resigned but were forced to do so in response to conduct by your employer which gave you no reasonable choice but to resign (constructive dismissal).
 

Eligibility criteria and considerations

Most employees are able to make a claim for unfair dismissal, however there are some criteria that need to be satisfied.

When considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work Commission will take into account a wide range of materials and evidence. In certain cases the Commission will conduct a conference or hold a hearing in relation to the application (usually when the matter involves disputed facts).
 

Time limits for making a claim

There is a strict 21-day time limit for unfair dismissal claims. A claim lodged outside this period will only be considered by the Fair Work Commission or a State Commission in exceptional circumstances. So it's important to seek legal advice as soon as you believe you've been unfairly dismissed so you know where you stand.

Eligibility criteria

Eligibility criteria

There are two main eligibility criteria for unfair dismissal claims:

  1. Minimum employment period. You must be able to demonstrate that you were employed for the relevant time period. The length of this period depends on your type of employment:
    • Permanent employees - 6 months of continuous employment prior to your dismissal (12 months if your employer is a small business with less than 15 employees)
    • Casual employees - 6 months of regular and systematic employment and a reasonable expectation of continued employment on this basis prior to your dismissal (12 months if your employer is a small business with less than 15 employees)
       
  2. High income threshold. Your annual income must be lower than the threshold set under the Fair Work Act 2009, unless you're covered by a modern award or enterprise agreement. As of 1 July 2021, the threshold is $158,500 per year. The high-income threshold increases each year on the 1st of July.

Exclusions

Exclusions

The following employees are excluded from making an unfair dismissal claim:

  • employees who have been employed for less than 6 months (or less than 12 months if the employer is a small business with less than 15 employees)
  • employees whose dismissals are consistent with the Small Business Fair Dismissal Code ('the code')
  • employees who are genuinely made redundant
  • employees who resigned but were not forced to do so because of conduct, or a course of conduct, engaged in by the employer
  • employees who earn more than the annual amount set out in the regulations ($158,500 as of 1 July 2021), unless you're covered by a modern award or enterprise agreement.

Considerations

Considerations

Some of the key things the Fair Work Commission will consider when determining whether a dismissal was harsh, unjust or unreasonable are:

  • whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)
  • whether the person was notified of that reason and given an opportunity to respond
  • any unreasonable refusal by the employer to allow the person to have a support person present at any discussions relating to dismissal
  • if the dismissal related to unsatisfactory performance by the person - regardless of whether the person had been warned about that unsatisfactory performance before the dismissal
  • the degree to which the size of the employer's business would be likely to impact on the procedures followed in dismissing the employee
  • the degree to which the absence of dedicated human resource management expertise in the business would be likely to impact the procedures of the dismissal.

Remedies

Remedies

The remedy you're awarded depends on what's appropriate for the circumstances of your case. If the Fair Work Commission is satisfied that you were unfairly dismissed, they may order either:

  • compensation for lost wages, not exceeding 26 weeks of pay (this cannot include a component for shock, distress or humiliation), or
  • reinstatement to your previous position (getting your job back).

Unfair dismissal vs. wrongful termination

People usually assume that unfair dismissal and wrongful termination (or dismissal) are one and the same. The main difference is that wrongful termination involves breaking the terms of an employment contract under the common law, whereas unfair dismissal describes a right of action that an employee may have under the Fair Work Act 2009. Wrongful termination specifically refers to an employment contract breach, unfair dismissal is more complex and can have many potential definitions.

Common examples of wrongful termination:

  • The employee is terminated without adhering to the notice periods in the contract.
  • A fixed term contract is terminated before the term is up.


A common example of unfair dismissal is where an employee is dismissed for performance reasons without:

  • any notice or warning
  • being informed of their performance targets
  • being given the opportunity to improve.

Wrongful termination cases are generally more costly and slower due to the court process. Depending on the circumstances surrounding termination, both unfair dismissal and wrongful termination claims might be a possibility.

We're here to help you understand your options and decide on the best course of action for you.

We're here for you

We have an outstanding record of achieving successful outcomes for employees in both the private and public sector. We know how to navigate this increasingly complex and ever-changing area of the law.


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Get in touch. Call us on 1800 810 812 to book an initial consultation. Your first consultation costs $690 (incl GST).

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At your one hour consult our lawyers will provide advice on your situation, the best action to take, and next steps. 

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Most of our cases are resolved out of court, and discretion is assured.


'When our client John was sacked, we filed an unfair dismissal claim. We were successful and John could return to work and regain financial security.'

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