How to File an Unfair Dismissal Claim

Claim fair treatment! Learn how to file an unfair dismissal claim plus a lawyer's insight on how to succeed.

If you’re questioning whether your dismissal was unfair and what to do about it, you’re in the right place. This straightforward guide will explain who can make an unfair dismissal claim, how to properly file one, and what might come after. Without complicated jargon, we’ll navigate you through the process, legal insights, and practical advice to arm you with the information you need.

Key Takeaways

  • Eligibility for filing an unfair dismissal claim depends on the period of continuous employment, with a standard minimum of six months and one year for small businesses, as well as whether an individual’s earnings fall below the high income threshold.
  • Unfair dismissal is characterised by termination that is harsh, unjust, or unreasonable, and should be distinguished from wrongful dismissal, which involves breach of contract, and constructive dismissal, where an employee resigns due to the employer’s conduct.
  • The Fair Work Act 2009 (Cth) governs unfair dismissal claims in Australia, with the Fair Work Commission authorised to make rulings, and employers must adhere to regulations, including the Small Business Fair Dismissal Code, to prevent legal disputes.

Essential Criteria for Unfair Dismissal Claims

Before we delve into the intricacies of unfair dismissal claims, let’s clarify who is eligible to make such a claim. Firstly, the period of continuous employment plays a significant role in whether an employee is eligible to file an unfair dismissal claim. For a standard business, the minimum period of continuous employment required is six months, while for small businesses, the requirement extends to one year. This calculation also considers the continuous service period with the previous employer in cases of business ownership changes.

Another determining factor for eligibility is an individual’s earnings. If your earnings fall below the high-income threshold, which is subject to annual adjustments, you qualify to lodge an unfair dismissal claim. However, high-income earners who are not covered by an Award or an enterprise agreement are ineligible to apply for an unfair dismissal claim.

Bear in mind that these criteria do not encompass all considerations. The Fair Work Commission considers various factors in assessing an unfair dismissal claim. Nonetheless, understanding these fundamental criteria provides a good starting point for those considering filing an unfair dismissal claim.

Key Differences Between Unfair, Wrongful, and Constructive Dismissal

Not all dismissals are created equal. Grasping the distinctions between various types of dismissals can guide you towards the most suitable response. In the following sections, we’ll explore the key differences between unfair, wrongful, and constructive dismissal, each with its unique characteristics and implications.

Unfair Dismissal

Unfair dismissal is a term that is commonly used but often misunderstood. It occurs when an employee is unfairly dismissed from their job in a manner that is harsh unjust or unreasonable, often without a genuine redundancy. Such unjust treatment comes in many forms, emphasising the need to grasp its varied manifestations.

For instance, a dismissal may be deemed unfair if:

  • an employee is terminated due to behaviour without prior warning
  • based on poor job performance without due process
  • an employer claims redundancy, but if it’s not bona fide, it could also be a case of unfair dismissal.

Remember, each situation is distinct and should be treated as such. The Fair Work Commission evaluates each case based on its specific circumstances, including:

  • the size of the employer’s enterprise
  • the degree to which the absence of dedicated human resource management specialists or expertise impacted the procedures followed in effecting dismissal
  • any other factors it considers relevant.

Wrongful Dismissal

While all types of dismissals can feel unjust, wrongful dismissal has a specific legal definition. It occurs when an employer breaches a term or terms of the employment contract, such as failing to comply with the notice period provision. Thus, if your employer dismisses you without adhering to the contract terms, you might have grounds for unlawful termination.

When wrongful dismissal occurs, the primary remedy is reinstatement, which involves returning the employee to their previous position or an equivalent role with similar terms if the original job is not available. This means that if you win a wrongful dismissal case, you could return to your original job or one similar.

Note that wrongful dismissal differs from unfair dismissal as it involves a contract breach, whereas the latter is regulated by the Fair Work Act. Therefore, the remedies and legal processes involved are different.

Constructive Dismissal

Constructive dismissal is a unique type of dismissal related situation that is often overlooked. It occurs when an employee resigns due to the employer’s conduct, which can include creating a hostile work environment or making undue changes to employment terms.

Interestingly, even though the employee technically resigns, if the resignation is coerced by the employer’s behaviour, it can legally be considered a form of dismissal. If your employer’s actions compelled you to resign, you may potentially claim constructive dismissal.

Constructive dismissal may arise from several circumstances, such as:

  • Wage non-payment
  • Unjust demotion
  • Unsafe working conditions
  • Workplace harassment or abuse

In such scenarios, seeking legal counsel to comprehend your rights, including understanding general protections provisions and having a reasonable expectation of their application, is pivotal.

The Fair Work Act: Your Legal Guide to Unfair Dismissal Claims

Unfair dismissal claims in Australia are governed by a key piece of legislation - the Fair Work Act 2009 (Cth). The Act outlines the laws employers must comply with regarding employment and dismissal procedures, providing a legal framework for fair work practices.

Both the Fair Work Ombudsman and the Fair Work Commission play fundamental roles in administering Commonwealth workplace laws concerning employment termination. The Fair Work Commission, in particular, has the authority to make rulings on cases of unfair dismissal, ensuring that the principles of fairness and justice are upheld in the workplace.

Both employees and employers need to understand the Fair Work Act as it pertains to the employer’s business. For employees, it provides a legal recourse in case of unfair treatment. For employers, adhering to the Act’s provisions helps maintain a fair and respectful work environment while avoiding potential legal disputes.

Navigating the Small Business Fair Dismissal Code

For small business employer, the rules around dismissal can be a bit different. A small business, as defined under the Small Business Fair Dismissal Code, is a business with fewer than 15 employees, including certain categories of casual staff. The Code offers a set of guidelines designed to help small businesses avoid unfair dismissal claims when terminating employees.

However, understanding the Code can be intricate. Serious misconduct, such as theft, fraud, violence, or serious breaches of work health and safety procedures, can warrant immediate dismissal. These actions are considered grounds for termination of employment.

For dismissals that do not involve serious misconduct, a fair process includes:

  1. Providing the employee with a valid reason related to their capacity or conduct
  2. Issuing a written warning
  3. Allowing the opportunity to improve or respond.

Adherence to the Small Business Fair Dismissal Code provides protection against claims of unfair dismissal. It’s important to note that employees must be working for a small business for a minimum employment period of 12 months before they can apply for an unfair dismissal claim.

Necessary Steps Before Terminating Employment

Before proceeding with employee termination, employers should adhere to several fair procedures. These include:

  • Giving warnings for non-serious misconduct
  • Allowing the employee time to improve their performance or conduct
  • Ensuring proper documentation
  • Maintaining records

Moreover, when terminating an employee, the following steps must be taken:

  1. Provide written notice to the employee detailing the termination date.
  2. Adhere to the required notice period, which varies by employee conditions.
  3. Provide pay in lieu of notice, including any outstanding wages, accrued leave, and redundancy payments at dismissal.

In cases of redundancy due to business downturn, employers should follow a genuine process, including:

  • Providing the required period of notice
  • Consulting with employees
  • Offering possible alternative positions
  • Attempting to transfer the employee to a suitable role before termination

It’s also advisable for employers to seek legal advice to ensure compliance with the law and consider alternative dispute resolution methods, such as mediation, to resolve issues before moving towards dismissal.

Filing an Unfair Dismissal Claim: The Process and Timeline

If you suspect unfair dismissal, knowing the claim filing process and the involved timeline is crucial. The first step in this process is to submit an unfair dismissal application to the Fair Work Commission within 21 days from the day after your dismissal.

To assist individuals in determining their eligibility to apply for an unfair dismissal claim, the Fair Work Commission provides an online eligibility quiz. This tool can be extraordinarily helpful in assessing whether you meet the necessary criteria to file a claim.

Once an unfair dismissal claim is lodged, the employer is required to:

  1. File a response within seven days to the Fair Work Commission.
  2. Attend a conciliation conference to facilitate a resolution.
  3. If unresolved, the matter may proceed to a formal conference or hearing.

Compensation and Reinstatement: What to Expect from an Unfair Dismissal Case

When an unfair dismissal claim is successful, the outcomes can vary. Reinstatement is the primary remedy sought in unfair dismissal claims, but if deemed unsuitable, the Fair Work Commission may order compensation or other remedies.

Reinstatement might not be practical in some circumstances. For instance, if:

  • there’s a loss of confidence between the parties
  • the employee cannot perform the work due to illness or injury
  • it imposes unreasonable burdens on the employer or co-workers

Reinstatement might not be an option for a national system employee, especially for permanent employees.

If reinstatement proves unfeasible, the Fair Work Commission may mandate compensation. When deciding on compensation, the Commission considers factors such as financial losses incurred by the employee and circumstances surrounding the dismissal.

Special Considerations for Casual Employees

Casual employees, like other employees, also have rights when it comes to dismissal. Casual employees are entitled to file an unfair dismissal claim, provided they fulfil stipulated eligibility conditions.

Eligibility criteria for casual employees to file an unfair dismissal claim involve fulfilling the minimum qualifying period and other specified conditions. Therefore, if you are a casual employee who has been dismissed, it’s essential to familiarise yourself with these criteria to understand your rights and potential recourse.

Keep in mind that the law encompassing casual employees and unfair dismissal is intricate. As such, seeking advice from an employment law expert can be beneficial in navigating this process and ensuring your rights are protected.

Tips for Employers: How to Prevent Unfair Dismissal Claims

Although this guide is mainly employee-centric, it’s equally vital for employers to comprehend how to forestall unfair dismissal claims. One of the key steps employers can take is to ensure that employment contracts clearly outline the reasons for which an employee can be terminated and have clear business policies and procedures in place.

Training also plays a crucial role. Managers and supervisors require adequate training in employment law and comprehensive understanding of company policies to enforce disciplinary actions consistently. Furthermore, clear communication with employees is vital to prevent misunderstandings that could lead to disputes and potential unfair dismissal claims during an employee’s employment.

Most importantly, exhibiting good faith, transparency, and fairness in all employee interactions are key steps towards preventing disputes and unfair dismissal claims. Implementing these strategies can help create a positive workplace environment and reduce the risk of legal disputes.


In conclusion, understanding your rights and responsibilities concerning unfair dismissal is crucial, whether you are an employer or an employee. The Fair Work Act 2009 provides a legal framework for these matters, with the Fair Work Commission and the Fair Work Ombudsman playing vital roles in overseeing workplace laws. It’s important to remember that everyone deserves a fair process, and no one should be subjected to harsh, unjust, or unreasonable dismissal.

Frequently Asked Questions

What is the difference between unfair, wrongful, and constructive dismissal?

Unfair dismissal is related to harsh or unjust termination, while wrongful dismissal involves breaching a contract, such as failing to provide notice. Constructive dismissal occurs when an employee resigns due to the employer's conduct, like creating a hostile work environment.

What is the role of the Fair Work Commission in unfair dismissal claims?

The role of the Fair Work Commission in unfair dismissal claims is to oversee the process, make rulings on cases, and ensure fairness and justice.

What are the protections provided by the Small Business Fair Dismissal Code?

The Small Business Fair Dismissal Code offers guidelines to help small businesses avoid unfair dismissal claims, providing protection against such claims when terminating employees.

What steps should employers take before terminating employment?

Employers should follow fair procedures, including giving warnings for non-serious misconduct, allowing the employee time to improve their performance or conduct, ensuring proper documentation, and maintaining records to terminate employment appropriately.

What are the possible outcomes of an unfair dismissal case?

Possible outcomes of an unfair dismissal case include seeking reinstatement as the primary outcome, and if that is not suitable, the Fair Work Commission may order compensation or other remedies.