What is unfair dismissal?

You may have been dismissed if:

• your employer told you that your employment had finished or would finish on a particular date
• your employer didn't tell you that your employment had finished but acted as though it had, for example not giving you shifts
• you resigned because of the way your employer acted. For example, your employer told you that you had to resign or they would sack you 
• you were demoted or transferred to a job that pays significantly less, has different duties or does not have as good conditions
• you were unreasonably asked to transfer to a different location (for example your employer told you that you can only keep your job if you move to a new city).

If you are forced to resign this is sometimes called 'constructive dismissal'. Constructive dismissal may also happen if:

• the employer changes the main terms and conditions of your employment and you have not agreed to those changes. For example, being transferred to a role with different duties or being transferred from permanent to casual employment. 
• your employer refuses to obey employment laws (for example pay you the correct wages) and you feel you have no choice but to leave because of this.
• you are 'squeezed out' by your employer making it impossible for you to stay in the workplace. For example, they repeatedly make unreasonable requests or are hostile to you.

If you think you were unfairly dismissed, you should get legal advice as soon as possible. If you want to make an unfair dismissal application to the Fair Work Commission (the Commission), you must do so within 21 days of the date you were dismissed.

You may not have been dismissed if:

• you were employed for a set period of time and that time has ended, for example a fixed term contract
• you were employed to do a specific task and the task has been completed, for example, working on a one-off project, such as a festival
• you were employed for a specific season and the season has ended, for example, employment as a ski instructor or as a fruit picker
• you were employed under a training arrangement and your employment finished when the training was completed
• you did not go to work or contact the employer to explain your absence from work
• you were demoted (lowered in grade, rank or status) but your pay or duties were not significantly reduced.

If your employer put you on a fixed term or seasonal employment arrangement just to avoid their obligations (for example to avoid paying you certain wages or to avoid providing you with other conditions or entitlements), you may still be able to make an unfair dismissal application. If you are in this situation, you should get legal advice.

If you haven't been dismissed but you are currently experiencing any workplace bullying, you may be able to make a bullying claim in the Commission. You should get legal advice .

If you were dismissed from your employment and are thinking about making an unfair dismissal application, you need to work out whether the dismissal was unfair. A dismissal will be unfair if it was harsh, unjust or unreasonable. 

For example it might have been unfair if:

• you were dismissed for running a few minutes late on one occasion
• you were dismissed for making a small mistake that was easily corrected (e.g. forgetting to attach a document to an email)
• you were dismissed because stock went missing while you were working, but there was no evidence that you took the missing stock
• a mistake was made by many staff members in an organisation, but you were the only employee that was dismissed
• you were given more work than it was possible to complete and then dismissed for failing to meet deadlines
• you were dismissed for a discriminatory reason, for example carer's responsibilities or your race or gender
• you were not told why your employer was unhappy with your performance, or given a chance to work on solving any problems, but were dismissed for poor performance.

If you were dismissed unfairly from your job, you may be able to make a number of different claims against your employer. If you haven't been dismissed but you are experiencing any workplace bullying, you may able to make a bullying claim in the Fair Work Commission.

Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you.

When deciding if your dismissal was harsh, unjust or unreasonable, the Commission will consider the following:

• whether there was a valid reason for the dismissal
• whether you were told about that reason
• whether you were given an opportunity to respond to any allegations, claims of unsatisfactory performance or other issues raised by your employer
• whether your employer refused to let you have a support person to help you during any discussions about the dismissal (and whether their refusal was unreasonable in the circumstances)
• whether you were warned about unsatisfactory performance before you were dismissed (if the dismissal was about unsatisfactory performance)
• whether the size of the business affected the way you were dismissed
• whether there is a human resource officer in the employer's business (and if not, whether that affected the way you were dismissed)
• any other matters that the Commission considers relevant.

What is harsh, unjust or unreasonable will depend on the circumstances of your case. If you are not sure whether your dismissal was unfair, you should get legal advice as soon as possible. If you want to make an unfair dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

Warnings do not need to be in writing and there is no minimum number of warnings that your employer needs to give you before dismissing you.

If an employee seriously misbehaves (misconducts) themselves, their employer can dismiss them straight away. No notice or warnings will be required. This is called 'summary dismissal'.

Some examples of serious misconduct include:

• theft
• fraud
• being intoxicated at work
• assaulting employees, customers or other people in the workplace
• serious breaches of occupational health and safety procedures.

If you were summarily dismissed, but you do not think you did anything that was serious misconduct, you should get legal advice.

A redundancy will be 'genuine' if:

• your employer no longer needs anyone to do your job because they have made changes to the operational requirements of the business, and
• there is no other job at that workplace or at an associated entity that you could be transferred (redeployed) to, and
• your employer has done what it says in your modern award or enterprise agreement about consulting about the redundancy.

If the redundancy was genuine, you will not be able to claim you were unfairly dismissed. However, you should receive any redundancy pay owed to you. If you have not received redundancy pay, or are not sure that you have received the correct amount of redundancy pay, you should get legal advice.

For more information on redundancy pay, see Redundancy Pay.

A redundancy might not be considered 'genuine' if:

• your employer re-fills your position with a new employee, or
• there is another job at that workplace or at an associated entity that you could be transferred (redeployed) to but your employer does not do this, or
• your employer does not consult employees before making positions redundant.

If a redundancy was not genuine, it is possible to make an unfair dismissal application to the Fair Work Commission (the Commission).

If you are not sure if your redundancy was genuine, you should get legal advice.

If you want to make an unfair dismissal application to the Commission, you must do so within 21 days of the date you were dismissed. Make sure you file your application before you run out of time!

An associated entity is another business that your employer controls, influences or has an interest or investment in. It can also be a business that controls, influences or has an interest or an investment in your employer. Two businesses will also be 'associated entities' if there is a third business that controls them both.

If you haven't been dismissed but you are experiencing workplace bullying, you may be able to make a bullying claim in the Commission. You should get legal advice about your options.

It can sometimes be difficult to work out how many employees are employed by a business. You should consider the following.

Full time, part time and casual employees

Some businesses may have full time, part time and casual employees. Each full time and part time employee is counted as one person. Casual employees are only counted if they work on a 'regular and systematic basis' and have a reasonable expectation that they will continue to be employed. A 'regular and systematic basis' could include:

• a set number of shifts per week, fortnight or month
• a set number of hours per week, fortnight or month
• a regular pattern of days, shifts or hours.

Employees of associated entities

If the small business has 'associated entities', you must count the employees of that business as well. An associated entity is another business that your employer controls, influences or has an interest or investment in. It can also be a business that controls, influences or has an interest or an investment in your employer. Two businesses will also be 'associated entities' if there is a third business that controls them both.

You and any other dismissed employee

When counting how many employees the small business had at the time you were dismissed, you must include yourself and any other employee who was also dismissed at the same time as you.

The Small Business Fair Dismissal Code (the Code) is a document that sets out a checklist for small businesses to follow when dismissing employees. If a small business follows the Code, there will not have been an unfair dismissal.

The Code is separated into three sections: Summary Dismissal, Other Dismissal and Procedural Matters.

Summary Dismissal

This section of the Code states an employer can dismiss an employee without notice or warning when they do something that is 'serious misconduct'. This includes theft, fraud, violence and serious breaches of occupational health and safety procedures.

Other Dismissal

This section of the Code states that in cases that do not involve serious misconduct, an employer must warn an employee if they are at risk of being dismissed and explain why. Warnings can be verbal. They do not have to be in writing. The employee must be given a chance to fix the problem. This may include providing the employee with additional training.

Procedural Matters

This section of the code covers how dismissals should take place. It states that:

• an employee who is at risk of being dismissed should be allowed to have a person with them at performance meetings to support them.
• if an employee makes an unfair dismissal application, the employer must provide evidence that they followed the Code. This may include a completed checklist (which is available with the Code), copies of a written warning, a statement of termination or signed witness statements.

To get a copy of the Code, go to Small Business - Ending Employment on the Fair Work Ombudsman website.

If you were dismissed from a small business and your employer followed the Code, your application to the Fair Work Commission (the Commission) may not be successful. 

The employer will need to provide the Commission with evidence that they complied with the Code (for example, a completed checklist).

If your employer has not followed the Code, it is still possible for them to defend the claim if they can show that there are other reasons why the dismissal was not unfair. You will need to explain to the Commission why you think your dismissal was harsh, unjust or unreasonable in the circumstances. For more information, see Was it unfair?

If your employer was a small business when you were dismissed, you need to have worked for them for at least one year to be able to make an unfair dismissal application. For more information, see Can you apply?

There are restrictions (sometimes called 'jurisdictional limits') that affect whether you are able to make an unfair dismissal application to the Fair Work Commission (the Commission). If you believe you were unfairly dismissed, you can make an unfair dismissal application to the Commission if you: 

• are covered by national employment laws (this is sometimes called being a 'national system employee')
• have worked for a minimum amount of time (12 months for employees of small businesses and six months for other employees)
• were an employee (and not an independent contractor)
• were not a casual (unless you worked on a regular and systematic basis)
• don't earn more than $167,500 (as at 1 July 2023). If you earn more than this amount, but you are covered by a Modern Award or Enterprise Agreement, it may still be possible to apply.

There are also time limits that apply. If you want to make an unfair dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

For more information, see Can you apply?

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, see Checklist - Making an unfair dismissal application.

If you haven't been dismissed but you are experiencing workplace bullying, you may be able to make a bullying claim in the Commission. You should get legal advice about your options.  

f you want to make an unfair dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

For more information on making your application, see  Step by step guide - Making an unfair dismissal application.

There are two main types of orders that the Commission can make if an employee has been unfairly dismissed. These orders are called 'remedies'. The Commission can order your employer to:

• give you back your job or a substantially similar job (reinstatement), or
• pay you compensation (to a maximum of 26 weeks wages).

If the Commission orders reinstatement, it may also order that you be paid an amount for the wages or salary you lost because of the dismissal. 

It is possible to agree with your employer for some other remedy to be given to you to resolve the dispute. For more information, see Conciliation, in Unfair dismissal.

Order for re-employment

If you are reinstated, you go back to working for the employer that dismissed you. Reinstatement is the first remedy that the Commission will consider. If you don't want to go back to working for your employer, or your employer has good reasons why you shouldn't be re-employed, the Commission may order your employer to pay you compensation instead.

If the Commission makes an order for reinstatement, the employer must:

• give you the same position you had before you were dismissed, or 
• put you in another position where the terms and conditions are just as good as the ones you had before (sometimes called redeployment).
• If your old position (or a position equal to your old position) is no longer available with your employer, the Commission can make an order that you be hired by an 'associated entity'.

An associated entity is another business that your employer controls, influences or has an interest or investment in. It can also be a business that controls, influences or has an interest or an investment in your employer. Two businesses will also be 'associated entities' if there is a third business that controls them both.  For example, if your employer owns a number of companies, the Commission can order that you be given a job at one of the other companies.

Other orders 

The Commission may also make an order that:

• your employment be considered 'continuous' during the time that you were dismissed. If your service is continuous, you will keep entitlements to long service leave and any other benefits that depend on your length of service
• your employer pay you for the wages or salary you lost because of the dismissal.

You have an obligation to try and make the amount of money you lose after being dismissed as small as possible. This is called 'mitigating your loss'. One of the main things you can do to mitigate your loss is to try and find another job. You should keep records of the things you do to find a new job, for example copies of job applications and refusal letters. Another thing you can do is apply for Centrelink benefits. 

If you are worried about going back to work for the employer, you should explain to the Commission why reinstatement is not appropriate in your case and why you think compensation should be ordered instead.

If the Commission decides that reinstatement is not suitable in your case, it may order the employer to pay you compensation. There is a cap on the amount of compensation you can get.

The maximum compensation the Commission can order the employer to pay you is 26 weeks pay.

When working out how much compensation you should be paid, the Commission must look at:

(a) the effect this will have on the employer's business 
(b) how long you have worked for the employer
(c) the money you would have received (or were likely to receive) if you weren't dismissed
(d) what you have done to reduce (mitigate) the loss you suffered because of the dismissal
(e) how much you have earned from employment or other work since you were dismissed 
(f) how much you are likely to earn between when the Commission makes the order and when you will get any compensation payments
(g) if you have misbehaved in any way and whether this contributed to the employer's decision to dismiss you
(h) any other matter that the Commission considers relevant.

The Commission cannot award you compensation for hurt feelings (for example shock, distress or humiliation) caused because of the way you were dismissed. 

If you haven't been dismissed but you are experiencing workplace bullying, you may be able to make a bullying claim in the Commission. You should get legal advice about your options.