Unfair dismissal in Australia

What is unfair dismissal?

Under the Fair Work Act 2009, a dismissal is unfair if the Fair Work Commission finds it was harsh, unjust or unreasonable, was not a case of genuine redundancy, and, where the employer is a small business, was not consistent with the Small Business Fair Dismissal Code.

The four things the Commission must be satisfied of

Under section 385 of the Fair Work Act, you have been unfairly dismissed only if the Commission is satisfied of all four of these things:

1. you were dismissed, which can include being forced to resign;
2. the dismissal was harsh, unjust or unreasonable;
3. it was not a case of genuine redundancy; and
4. where your employer is a small business, it was not consistent with the Small Business Fair Dismissal Code.

Each element has its own test, and an employer will usually defend a claim by attacking whichever one looks weakest. The rest of this page works through them in turn.

It is worth saying early that unfair dismissal is about how and why you were dismissed, not simply the fact of it. An employer can have a perfectly good reason to let someone go and still lose, because of the way it went about it.

What makes a dismissal harsh, unjust or unreasonable?

A dismissal only has to be one of the three. It may be unjust because you were not in fact guilty of what you were accused of, unreasonable because the decision did not follow from the evidence, or harsh because the penalty was out of proportion to what happened, for example dismissing a long serving employee for a first minor mistake.

When it decides, the Commission weighs the factors set out in section 387 of the Act. In broad terms:

Was there a valid reason? A reason connected to your capacity to do the job or to your conduct. It must be sound, defensible, and well founded, not merely something the employer believed at the time.

Were you told about it? The reason must have been put to you.

Were you given a chance to respond? A real one, before the decision was made, not after.

Were you allowed a support person? If you asked for one and were refused, that counts.

If it was about performance, were you warned? Being dismissed for unsatisfactory performance without any prior warning is difficult for an employer to defend.

Size of the business and access to HR expertise. A small business without dedicated HR is held to a different practical standard than a large employer.

The Commission also considers anything else it thinks relevant. A dismissal can be found unfair because the process was defective even where a valid reason existed. It can also be found fair despite procedural flaws. These are judgment calls, and anyone who tells you a case is a certainty is guessing.

The higher courts have made the same point. In Byrne v Australian Airlines (1995) the High Court explained that a dismissal can be harsh, unjust or unreasonable in several different ways. And in B, C and D v Australian Postal Corporation (2013) a Full Bench confirmed that a valid reason does not automatically make a dismissal fair: your length of service and what losing the job costs you are part of the picture too.

Where dismissals commonly come undone. In our experience, the dismissals most often found unfair share one or more of these features:

• dismissed for performance without ever being told your performance was a problem (see dismissal for poor performance);
• told the decision was final before you could give your side;
• instantly dismissed for something that at most warranted a warning (see summary dismissal);
• a "restructure" or "redundancy" that conveniently follows a complaint, an injury or a dispute;
• dismissed for something colleagues have done without consequence; or
• dismissed over conduct in your own time, which only rarely justifies dismissal, and which the new right to disconnect rules push back on further.

Are you eligible to claim?

Before the Commission looks at fairness, you have to clear a few threshold rules. In short, you can generally claim if:

• you were an employee in the national workplace relations system, which covers most Australian employees;
• you had served the minimum employment period: at least 6 months, or 12 months if your employer is a small business with fewer than 15 employees; and
• you are covered by a modern award or an enterprise agreement, or your earnings are below the high income threshold, currently $190,100. If you earn more than that and are not award covered, you may still have options: see our high income threshold guide.

Casual employees can claim too, as long as the work was regular and systematic and you had a reasonable expectation it would continue. Many long term casuals assume they have no rights and are wrong: our casual employees guide explains the test.

Independent contractors, employees on a genuinely completed fixed term contract, and people dismissed during a lawful probation period inside the minimum employment period generally cannot bring an unfair dismissal claim. They may still have a general protections claim, which has no minimum service requirement.

Not everyone who is dismissed can bring a claim. Check the eligibility rules in full, or call 1800 UNFAIR and we will tell you in five minutes.

The 21 day deadline

Two practical points. The clock generally starts when the dismissal takes effect, not when notice is given. If you are told on the 1st that your job ends on the 14th, the 21 days usually run from the 14th. And you do not need your evidence ready to lodge: the application form asks only for a short summary, so you can lodge first and build the case afterwards.

Forced to resign can still be a dismissal

You do not have to be formally sacked to have been dismissed. If you resigned because your employer left you no real choice, for example your pay was cut, your role was hollowed out, you were bullied, or you were told to resign or be fired, the law may treat that resignation as a dismissal. This is often called constructive dismissal.

The question is whether the employer's conduct was intended to end the employment, or was likely to have that result. If it was, you can bring an unfair dismissal claim as though you had been terminated.

These cases are fought harder than most, because the employer will argue you left of your own accord, so what pushed you out matters enormously. Read our guide to constructive dismissal and forced resignation before you resign if you possibly can. The strongest cases are usually built before the resignation letter is sent.

Redundancy: genuine or not?

If your role was genuinely no longer required because of operational changes, the employer complied with any consultation obligations in an award or agreement, and redeployment within the business or an associated entity was not reasonable, the dismissal is a genuine redundancy and you cannot claim unfair dismissal.

Redundancies frequently fail this test. Under section 389, all three of the following have to be true, and if any one of them fails the redundancy is not genuine:

1. the employer no longer needs your job done by anyone, because of changes in operational requirements;
2. the employer complied with the consultation obligations in any award or agreement that applied; and
3. it would not have been reasonable to redeploy you within the business or an associated entity.

The failures we see most often: your duties were quietly handed to someone else or a new hire, so the job still exists; there was no real consultation, and a meeting announcing a decision already made is not consultation; or vacant roles you could have filled were never offered to you. If you were made redundant and someone else was doing your job three weeks later, that is worth a phone call. Our redundancy guide covers sham redundancies, how people are selected, and what proper consultation looks like.

Small business employers

If your employer had fewer than 15 employees at the time of the dismissal, counting heads rather than full time equivalents and including regular casuals, two special rules apply. The minimum employment period is 12 months rather than 6, and the employer has a defence if it followed the Small Business Fair Dismissal Code.

Broadly, the Code allows instant dismissal where the employer believed on reasonable grounds that the conduct was serious enough to justify it, such as theft, violence or a serious safety breach, and otherwise expects a warning and a chance to improve. The employer has to prove it complied, and many get it wrong: a belief that misconduct occurred has to be genuinely reasonable, and a vague verbal warning months earlier rarely counts. See our small business dismissal guide.

How the claim process works

Most claims follow the same path, and most never get near a hearing.

1. You lodge an application with the Commission within 21 days. There is an application fee, which is indexed annually. The Commission can waive it on grounds of financial hardship, and where you do not have grounds for a hardship waiver, we cover it. Either way, you do not pay the application fee.
2. The employer responds, usually within about a week, setting out its version and any objections, for example that you are not eligible, that you were out of time, or that it was a genuine redundancy.
3. Conciliation. An informal, private telephone conference run by an independent conciliator, usually listed within a few weeks. This is where most matters settle, commonly with a payment, an agreed record of how the employment ended, and confidentiality terms. Nothing said can be used later, and you are never obliged to accept an offer.
4. A jurisdiction hearing, if the employer presses an objection, where the Commission decides the threshold questions before fairness is looked at.
5. Arbitration, a formal hearing with evidence and cross examination, after which the Commission decides whether the dismissal was unfair and what to order. These decisions are published.

Most matters reach a conciliation conference within about 3 to 6 weeks of lodgement, which is generally fast compared with going to court. A matter that runs all the way to arbitration can take several months. Our Fair Work Commission process guide walks through what happens on the conciliation call and how to prepare.

What you can win

Compensation is capped at the lesser of 26 weeks' pay or half the high income threshold, currently $95,050. It covers financial loss only. Compensation cannot include any amount for shock, distress, humiliation or other hurt. Read more on how it is worked out in our compensation guide.

Unfair dismissal or another kind of claim?

Unfair dismissal is only one way to challenge a dismissal, and choosing the right one matters, because they have different deadlines, tests and limits.

• General protections. For where you were dismissed because of a workplace right, such as making a complaint or taking leave, or because of a protected attribute. It also has a 21 day deadline for dismissal claims, but no minimum service period, no high income threshold bar, and no cap on compensation. If you were dismissed after making a complaint or caught up in sham contracting, start there. Our comparison guide explains how to choose.
• Unlawful termination, a narrower relation of general protections, mainly for employees outside the national system.
• Breach of contract, where the dismissal broke your employment contract, for example by not giving proper notice. This is pursued in a court, with a much longer time limit.
• Discrimination claims, under federal or state discrimination law, which have their own, longer time limits.

You generally cannot run an unfair dismissal claim and a general protections dismissal claim at the same time. You have to choose, and the choice has to be made inside the same 21 days. That single decision is one of the most consequential in the whole process, and it is the best reason to get advice early rather than lodging the wrong form yourself.

Does unfair dismissal law change from state to state?

The test does not. Unfair dismissal comes from one national law, the Fair Work Act 2009, and the same harsh, unjust or unreasonable test applies whether you worked in New South Wales (NSW), Victoria (Vic), Queensland (QLD), Western Australia (WA), South Australia (SA), Tasmania (Tas), the Australian Capital Territory (ACT) or the Northern Territory (NT).

What can change is which body hears your claim, and in one state how long you have to lodge.

• Unfair dismissal in NSW: most people lodge federally, but state public sector and local government employees go to the NSW Industrial Relations Commission.
• Unfair dismissal in Queensland: the same split, with state and local government going to the QIRC, which applies its own exclusions for probation and short term casuals.
• Unfair dismissal in WA: the outlier. Employees of sole traders, unincorporated partnerships and unincorporated trusts are in the state system, and the deadline there is 28 days rather than 21.
• Unfair dismissal in Victoria: no state system at all. Everyone is federal, so there is no second door if federal eligibility fails.
• Unfair dismissal in SA: state government, its business enterprises and local government go to the South Australian Employment Tribunal.
• Unfair dismissal in Tasmania: private sector work was referred to the Commonwealth from 2010, sole traders and partnerships included, so only State Service employees go to the Tasmanian Industrial Commission.
• Unfair dismissal in the ACT and the NT: no separate system. As territories they sit wholly under the Fair Work Act, so everybody lodges federally.

Working out which system covers you matters, because lodging in the wrong place can cost you the claim while the other clock runs down.

We act for employees across every state and territory, wherever you were dismissed, in Sydney, Melbourne, Brisbane, Perth, Adelaide, Hobart, Canberra or Darwin. Because the Commission conciliates by phone and video, the process runs the same way whichever city you are calling from.

Published Commission decisions

These are published decisions of the Fair Work Commission, not our clients' results. Most matters we run settle privately at conciliation, on confidential terms, and never become public decisions. We include these two because they show how the Commission applies the law when a matter does go all the way to a hearing.

A valid reason is not always enough. In B, C and D v Australian Postal Corporation [2013] FWCFB 6191, three employees with between 11 and 17 years of service were dismissed for emailing pornographic material in breach of a clear policy. A Full Bench accepted there was a valid reason, but still found each dismissal harsh, because it was out of proportion once length of service and the surrounding circumstances were weighed. The appeal was upheld and the dismissals were found to be unfair.

A redundancy label is not the end of the inquiry. In Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578, mineworkers were let go in a restructure while vacancies existed in the employer's own operations and its associated entities. A Full Bench held that making redundant employees compete for those vacancies, instead of redeploying them, could mean the dismissals were not genuine redundancies, so an unfair dismissal claim could go ahead. Redeployment is not excused merely because the available job is with a related company.

Both decisions can be read in full at the links above.

This page is general information about the law in Australia, not advice about your circumstances. The dollar figures are current for the 2026 to 2027 financial year and are reindexed on 1 July each year.

Frequently asked questions

Short answers to the questions we are asked most. For anything specific to your situation, call 1800 UNFAIR.

How much compensation can I get for unfair dismissal?

Compensation is capped at the lesser of 26 weeks' pay or half the high income threshold, currently $95,050. It covers financial loss only, so the Commission cannot award anything for shock, distress or humiliation. Most matters settle at conciliation for a negotiated amount rather than a figure fixed by that formula.

How long do I have to make a claim?

21 calendar days from the day the dismissal took effect, weekends and public holidays included. The Commission can extend that only in exceptional circumstances, and it rarely does. If you are near or past the deadline, get advice straight away. There is one exception: the WA state system allows 28 days.

Can casual employees claim unfair dismissal?

Yes, if the work was regular and systematic and you had a reasonable expectation it would continue, and you meet the minimum employment period. Many long term casuals are eligible without realising it.

Can I claim if I was made redundant?

Yes, if the redundancy was not genuine. If someone else is now doing your job, if you were not consulted as an award or agreement required, or if you could reasonably have been redeployed, the redundancy defence can fail. A redundancy label does not protect an employer that did not meet the test.

I resigned. Can I still claim?

Possibly. If your employer's conduct left you no real choice, such as a unilateral pay cut, having your role stripped out, sustained mistreatment, or a resign or be sacked ultimatum, the law may treat the resignation as a dismissal.

What does it cost to lodge a claim?

The Commission charges an application fee that is indexed each year. It can be waived if paying it would cause you financial hardship, and where you do not have grounds for a waiver, we pay the fee on your behalf, so either way you do not pay the application fee. We act on a no win, no fee basis for almost all unfair dismissal matters, and the first call is free.

What happens at a conciliation conference?

It is an informal, private telephone conference run by an independent conciliator, usually a few weeks after you lodge. Each side puts its position, the conciliator tests both, and offers move back and forth. Nothing said can be used later at a hearing. Most matters settle at or before this stage, commonly with a payment, an agreed record of how the employment ended, and confidentiality terms.

Was my dismissal automatically unfair?

No dismissal is automatically unfair. The Commission always weighs the factors in the Act. But some reasons for dismissal are separately unlawful under the general protections provisions, for example dismissal for making a complaint, taking personal leave, or a temporary absence through illness, and those claims are often stronger than an unfair dismissal claim.