Home > UNFAIR DISMISSAL

What is unfair dismissal?

An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and the Fair Work Commission finds that:

  • the employee was dismissed, and
  • the dismissal was harsh, unjust or unreasonable, and
  • the dismissal was not a case of genuine redundancy, and
  • where the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.
A small business is a business that employs fewer than 15 employees.

Who can make an unfair dismissal remedy application?

To make an unfair dismissal remedy application an employee must be:

  • covered by the national unfair dismissal laws, and
  • eligible to make an application.

The application must be lodged:

  • if the applicant was dismissed on or before 31 December 2012, the application must be lodged within 14 days after the dismissal took effect, or
  • if the applicant was dismissed on or after 1 January 2013, the application must be lodged within 21 days after the dismissal took effect.

Who is covered by the unfair dismissal laws?

Only employees covered by the national workplace relations system are covered by the unfair dismissal laws. (Other employees may have access to remedies under State legislation). The national workplace relations system covers:

  • in Victoria, the Northern Territory and the Australian Capital Territory—all employees
  • in New South Wales, Queensland and South Australia—employees of private enterprise
  • in Tasmania—employees of private enterprise and local government
  • in Western Australia—employees of constitutional corporations (including Pty Ltd companies), this may include some local governments
  • employees of the Commonwealth or a Commonwealth authority
  • waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce.

Who is not covered by the unfair dismissal laws?

The laws do not cover:

  • in New South Wales, Queensland and South Australia—employees of local and state governments
  • in Tasmania—employees of state government
  • in Western Australia—employees of state government and non-constitutional corporations (including sole traders, partnerships and Trusts)
  • contractors
  • employees who resign and were not forced to do so by the conduct of their employer
  • employees employed under a contract of employment for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season
  • trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement
  • employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.

Who is eligible to make an unfair dismissal remedy application?

An employee is eligible to make an application for unfair dismissal remedy if they have completed the minimum employment period of:

  • one year—where the employer employs fewer than 15 employees (a small business employer)
  • six months—where the employer employs 15 or more employees.

In addition, if the employee's earnings are more than $129,300 per year, at least one of the following must apply:

  • employee is covered by an award
  • employee is covered by an enterprise agreement.
For information on determining whether an employee is covered by an award or an enterprise agreement, visit the Fair Work Ombudsman's website at www.fairwork.gov.au

If you sincerely believe you have been dismissed unfairly, you should waste no time finding out about the appeal process and get the ball rolling to ensure you are afforded your rights and entitlements.

Types of dismissal

The Fair Work Commission deals with two main types of dismissal applications:

  • unfair dismissal
  • dismissal where there has been a breach of the general protections.

In general, an employee cannot pursue more than one type of dismissal application at the same time.

The Dismissals section of this site deals with unfair dismissal. The other type of dismissal application follows the processes outlined in the Dispute resolution section.

Queensland Industrial Relations Commission Unfair Dismissal Applications

If you are an Employer or Employee employed under the Queensland Industrial Relations Act, you have 21 Days to appeal from the effective date of termination.


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All urgent enquiries should be emailed to gethelp@workersfirst.com.au