Losing a job is stressful. It can also come with a hard deadline that many people miss. In Australia, most employees who want to challenge a dismissal as unfair have just 21 days to act. Knowing the basic rules early can make a real difference to your options.
This article covers what unfair dismissal means under the national workplace system. It explains who can make a claim and how the time limit works. It also looks at the protections for small business employers and what a claim can achieve. The rules are general and may not fit every situation.
What counts as unfair dismissal
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. Claims are made to the Fair Work Commission under the Fair Work Act 2009. The Commission looks at the reasons for the dismissal and how it was carried out. The Fair Work Ombudsman unfair dismissal guide sets out who can apply and how to lodge.
Unfair dismissal is only one kind of claim after a job ends. Employees may also be able to apply where a dismissal is linked to a breach of general protections or is an unlawful termination. These are separate claims with their own rules. Being dismissed while unwell raises its own questions, which we cover in our article on being fired for being sick.
Who can make a claim
Not every worker is covered. You generally need to be an employee rather than an independent contractor. Legal Aid NSW notes that a contract calling you a contractor does not necessarily make you one. The real working relationship matters more than the label.
There is also a minimum period of employment. Employees usually need at least six months of service with their employer. For a small business with fewer than 15 employees, the minimum period is 12 months. Legal Aid NSW notes that being on probation does not stop you applying once you have met this period.
Casual employees are usually not able to make an unfair dismissal application. A casual who worked on a regular and systematic basis, and reasonably expected ongoing work, may still be eligible. Higher earners can also be excluded. If you earn above the high income threshold and are not covered by a modern award or enterprise agreement, you cannot apply. The threshold is adjusted each year on 1 July.
Differences between states
Most private sector employees across Australia fall under the national system. According to Legal Aid NSW, this includes all employees in Victoria, the Northern Territory and the ACT. It also includes most companies in Western Australia. People who work for a state government in NSW, Queensland, WA, SA or Tasmania may not be covered. The same applies to some local government workers.
How the 21 day time limit works
An unfair dismissal application must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. The count starts on the day after the dismissal. Legal Aid NSW explains that the dismissal date is usually your last day worked or the day you were told, whichever is later. Three weeks passes quickly when you are dealing with the shock of losing work.
Late applications are possible but rare. Legal Aid NSW says the Commission may accept them only in very limited circumstances. Examples include being in hospital or receiving the wrong legal advice. The Commission also weighs the strength of the case and whether a late claim would unfairly disadvantage the employer. It is far safer to lodge on time.
Money pressure after a job loss can spill into other parts of life. Some people find that a dispute with a former employer starts eating into their savings. Our article on legal disputes that drain valuable assets looks at that risk more broadly. Acting early gives you more choices.
The Small Business Fair Dismissal Code
Small businesses have an extra layer of protection. For this purpose a small business has fewer than 15 employees. The Small Business Fair Dismissal Code protects these employers against unfair dismissal claims when they follow it. If the employer followed the Code and can show evidence of this, the Commission treats the dismissal as fair.
For small business owners, this makes good records worth the effort. Notes of warnings, meetings and the reasons for a decision can all help. Employers in specialised fields often carry extra workplace obligations as well. Our guide to employment law for dental practices gives one example of how this plays out in a small practice.
What an unfair dismissal claim can achieve
The Fair Work Commission must first decide whether the employee should get their job back. This is called reinstatement. Compensation is only considered if reinstatement is not ordered. The Commission may decide against reinstatement for reasons such as the business closing or a breakdown in the working relationship.
Compensation is limited. According to the Fair Work Commission page on compensation, the maximum is the lower of half the employee’s annual wage or a set cap. That cap changes on 1 July each year. Compensation covers lost income only. The Commission cannot order payment for pain and suffering, shock, distress, hurt or humiliation.
The amount can also be reduced in some cases. The Commission notes this can happen if the employee had no financial loss or engaged in misconduct. Anyone weighing up a claim should keep these limits in mind. A realistic view of the likely outcome helps with decisions about settlement.
Losing a job sometimes happens alongside other big life changes. If a dismissal comes during a relationship breakdown, money worries can double. Our piece on the financial fallout after separation covers some of those pressures. Each problem has its own legal process and timeframes.
Practical steps after a dismissal
Write down the key dates while they are fresh. Keep any letters, emails or messages about the dismissal. Check if you were an employee and how long you worked there. Then look at the Fair Work Commission website for the application form. Free legal advice is also available to eligible people.
Frequently asked questions
How long do I have to lodge an unfair dismissal claim?
You have 21 days from when the dismissal takes effect. The count starts on the day after the dismissal. Late claims are only accepted in very limited circumstances. Lodge as early as you can.
Can a casual employee claim unfair dismissal?
Casuals are usually not able to apply. A casual who worked on a regular and systematic basis, and reasonably expected ongoing work, may still be eligible. Each case depends on its facts. Legal advice can help you check where you stand.
Does probation stop me from making a claim?
Not on its own. Legal Aid NSW says probation does not prevent you from applying once you meet the minimum employment period. That period is six months for most employers. It is 12 months for a small business with fewer than 15 employees.
Can I get paid for the stress of being dismissed?
No. The Fair Work Commission cannot order compensation for shock, distress or humiliation. Compensation is limited to lost income. It is also capped and can be reduced in some situations.
This article is general information about Australian law only and is not legal advice. Workplace laws and processes differ between states and systems and change over time. Speak with a qualified lawyer about your own situation.
