Unfair Dismissal

This information is complimentary only and isn't to be relied upon as advice. Always refer to the relevant industrial legislation, your enterprise agreement, or our industrial team for matters that may affect your employment.

What is unfair dismissal?

An unfair dismissal is when your employer ends your employment in a way that is harsh, unjust, or unreasonable — and it doesn't meet the requirements of the law. This is different from a general protections dismissal, which is about why you were dismissed. Unfair dismissal is about how the dismissal happened and whether the process was fair.

Unfair Dismissal is generally a more accessible and less onerous action that is abritrated (decided) by the an Industrial Tribunal such as the Fair Work Commission (as opposed to General Protection with Dismissal, which goes to Court).

Why does it exist?

The objects (purpose) of industrial laws usually mention something related to "job security". These objects reflect Australia's participation and agreement to:

International Labour Organization Convention No. 158 (Termination of Employment) – which requires a "valid reason" for termination; and
International Covenant on Economic, Social and Cultural Rights – which includes a "right to work" which can be protected by ensuring dismissals aren't made unfairly.

It also ensures that Australian's are able to operate in employment with decency, reducing overall exploitation and obligations on employers. However these rights are of course limited by objective realities of industry and the economy (e.g. by redundancy).

Who is protected?

Only employees past probation can seek unfair dismissal remedy, this doesn't include those who trade as independent contractors (though other remedies may be available).

National & Private Sector Employees

Under the Fair Work Act, national system employees (such as private sector workers) are protected from unfair dismissal.

State Public Sector Employees

State and territory industrial laws provide equivalent protections for employees covered by state systems, such as state public sector workers in NSW, Qld, and WA. The specific laws, thresholds, and processes differ by jurisdiction — but the principle is the same: your employer cannot dismiss you unfairly.

What counts as dismissal?

Dismissal includes:

Being told you no longer have a job (with or without warning)
Being told your position is redundant
Being forced to resign or unable to work into the future because of your employer's conduct — this is called constructive dismissal and may still count (e.g. locked out of scheduling app, all access rights revoked).

Dismissal does not include:

Choosing to resign of your own accord
A fixed-term contract ending at the agreed date
Completing a specific task you were employed to complete
Seasonal work ending at the end of the season

What makes a dismissal unfair?

A dismissal may be unfair if it is one, two, or all three of the following:

Harsh: The penalty is extreme relative to the situation, or the impact on the employee is disproportionate (e.g. sacked for a first-time minor error without opportunity to improve)
Unjust: The employee wasn't actually guilty of what they were accused of (e.g. no valid reason)
Unreasonable: The evidence didn't support the decision to dismiss (e.g. false allegations relied on by the employer without properly assessing their reliability)

Industrial tribunals — whether the Fair Work Commission or a state equivalent — will also consider whether a fair process was followed. (e.g. whether you were given a genuine opportunity to respond before the decision was made – given the conduct was not serious misconduct).

Am I eligible to apply?

Eligibility varies by jurisdiction, but under the national system you generally need to meet all of the following:

Minimum employment period: 6 months with a large business, or 12 months with a small business (fewer than 15 employees) — state systems may have different thresholds
You've actually been dismissed: You can't apply before your dismissal has occurred
Income threshold: If you earn above the relevant high income threshold and are not covered by an award or enterprise agreement, you may not be eligible — this updates annually
Which system applies: Most private sector employees fall under the national system (Fair Work). State and local government employees are often covered by state industrial laws with their own equivalent processes

Not sure if you qualify? Don't try to work it out alone — our industrial team can assess your situation and identify the right jurisdiction when you lodge an MSF (current members only).

What about redundancy?

A genuine redundancy is not unfair dismissal. But if your employer claimed redundancy and it wasn't genuine — for example, your role still exists, or they failed to consult you as required under your award, enterprise agreement, or applicable industrial instrument — you may still have grounds for a claim under the relevant legislation.

⏰ Time limits are strict

Under the Fair Work Act, and other state jurisdictions, applications must be lodged within 21 days of your dismissal date. Don't wait to get advice if you think someone was wrong.

Think this might apply to you?

If you're unsure, help is available, there's no need to wait to speak to someone who has experience in the Unfair Dismissal process.

Are you already a subscriber?

Lodge a Member Support Form and our industrial team will assess whether unfair dismissal, general protections, or another pathway is right — and whether your claim falls under federal or state law.

→ Log in at member.redunion.com.au → find "Get Help?" → click "Member Support Form".

Not a member?

We can't assist with pre-existing issues, but if you'd like to understand your options going forward, you can try to book a 20-minute chat with our team. Please note this is a general overview of what might be available should you join — it is not industrial advice.

It's best to have your membership active in case a circumstance arises.

Ready to join?

To sign-up directly via the sign-up form:

Visit the signup form relevant to your industry (Nursing / Midwifery | Allied Health | Education | Officer | Other | New Zealand);
Tick "Yes" when prompted about pre-existing issues;
Wait for the onboarding emails after that's received –>
You can fill in an Member Support Form (be sure to tick "Yes" to the pre-existing question – our teams expect honesty on forms).

Good to Know

Always "mitigate your loss" by looking for new work or seeking medical assistance if you feel too unwell. Even if you win an unfair dismissal, the outcome and compensation will depend on your actions, you may be found responsible for your loss if you didn't try to mitigate it through job searches – and thus ultimately be paid less.

Compensation is usually lower than people expect If the relevant tribunal finds a dismissal was unfair, it may order compensation — but only for lost income, not for distress, hurt, or humiliation. Under the national system, the average payout is less than $10,000. The cap is the lower of half your annual wage or the statutory compensation cap (updated annually). Reinstatement is always considered first. State systems have their own compensation frameworks.

Small business rules are different Under the national system, small-business employers with fewer than 15 employees must follow the Small Business Fair Dismissal Code. Dismissals that genuinely comply with the Code are not unfair. State systems may have equivalent provisions for small employers.

Which system covers me? Almost all private sector employees are in the national system (i.e. Fair Work). State and local government employees may be covered by state industrial laws instead. If you're unsure, get help. You might also want to contact your current union (if you have one), your state's law society's 'find a solicitor' service, or a Community Legal Centre.

Needs updating?

Please let our team know if this article seems out of date — we're always looking to improve.