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A Guide Through Unfair Dismissal in Australia

In Australia, employees benefit from legal protections designed to shield them from unjust terminations. Should you suspect that your dismissal was unfair, you might be eligible to lodge an unfair dismissal claim. This article offers a comprehensive outline of the procedure, encompassing pivotal stages, legal aspects, and the Fair Work Commission’s involvement.

People can experience employment issues for many reasons, most commonly we find these issues relate to the:

  • Workplace bullying
  • Age discrimination
  • Race, colour, sexual preference
  • Religion
  • Sexual harassment
  • Family or carer’s responsibilities

An unfair dismissal claim must be lodged with the Fair Work Commission within 21 days of the dismissal.

To make a claim you must satisfy the following criteria:

  • You must be an employee
  • Your dismissal must not be a genuine redundancy
  • You meet the dismissal test and other requirements
  • Income test Minimum service test

Understanding the Criteria for Eligibility

Before pursuing an unfair dismissal claim, it’s crucial to ascertain whether you meet the eligibility criteria outlined in the Fair Work Act 2009 (Cth). These criteria encompass:

  1. Meeting the Minimum Employment Period: Typically, employees must have completed a minimum of six months of continuous service with their employer to qualify. However, for small businesses employing fewer than 15 individuals, the minimum period extends to 12 months.
  2. Falling under the National Workplace Relations System: Most employees in the private sector, along with certain state and local government employees, are governed by the national workplace relations system. It’s imperative to confirm whether your employment falls within this jurisdiction.
  3. Adhering to the Specified Time Limit: Unfair dismissal claims must be lodged with the Fair Work Commission within 21 days of the termination’s effective date. Failure to adhere to this deadline may expose your eligibility to risk for compensation

What is Considered an Unfair Dismissal by Fair Work Act 2009?

According to the Fair Work Act 2009, employers are permitted to terminate an employment contract under the following circumstances:

  1. Genuine redundancy.
  2. Termination that is not considered harsh, unjust, or unreasonable.
  3. Termination in accordance with the Small Business Fair Dismissal Code.
  4. Summary dismissal, which involves immediate termination for severe misconduct.
  5. Dismissal in lieu of notice, provided there is a valid reason and the required notice is given as per the employment agreement.


An employee is deemed to have been unfairly terminated if Fair Work Australia determines that the termination was indeed harsh, unjust, and unreasonable, or if it was not a genuine redundancy.

Under the Fair Dismissal Code, employees working for small business employers cannot lodge a claim for unfair termination within the first 12 months of employment. Conversely, employees of larger business employers can file a claim after completing 6 months of employment.

Commencing Your Unfair Dismissal Claim

To initiate the unfair dismissal procedure, you’ll need to submit an application to the Fair Work Commission, which can be accessed through their website. While seeking legal advice before completing the form is advisable, you have the option to lodge the application independently. Key details to include in the application form are:

  1. Personal Information: Your name, contact details, and employment particulars.
  2. Employer Information: The name and contact details of your former employer.
  3. Reason for Dismissal: A concise overview of the circumstances leading to your termination.
  4. Supporting Documentation: Any pertinent records, such as your employment agreement, performance assessments, or correspondence relevant to your dismissal.

Conciliation versus Formal Hearing:

When it comes to resolving disputes over unfair dismissal, employees often find themselves at a crossroads between two critical stages: conciliation and formal hearing. Both avenues offer distinct approaches to addressing grievances, each with its own set of advantages and considerations.

Conciliation, as the initial step, embodies a collaborative effort to find common ground between the employee and the employer. Facilitated by a neutral conciliator, this process encourages open dialogue and negotiation, aiming to reach a mutually acceptable resolution. Here, the emphasis lies on communication, understanding, and flexibility. Employees have the opportunity to voice their concerns, express their desired outcomes, and explore potential solutions. Employers, likewise, are encouraged to engage constructively, considering the implications of the dismissal and the possibility of finding amicable solutions. While the conciliator does not have decision-making authority, their role in guiding discussions and fostering compromise is pivotal.

On the other hand, the formal hearing represents a more structured and adversarial approach to dispute resolution. Here, both parties present their respective cases before the Fair Work Commission, relying on evidence, witness testimonies, and legal arguments to support their positions. Unlike conciliation, the formal hearing is bound by procedural rules and legal standards, with a focus on the impartial assessment of evidence and application of relevant laws. For employees, the formal hearing offers the opportunity to present a comprehensive case, backed by compelling evidence and legal arguments. It provides a platform for asserting their rights and seeking redress for unjust treatment. However, the formal nature of the process also entails greater complexity and formality, requiring thorough preparation and adherence to legal requirements.

In terms of outcomes, conciliation offers the prospect of a swift and mutually satisfactory resolution, without the need for protracted legal proceedings. It prioritises cooperation and compromise, potentially preserving working relationships and mitigating the emotional toll of prolonged conflict. Conversely, the formal hearing provides a forum for a thorough examination of the facts and legal principles, culminating in a decision by the Fair Work Commission. While the process may be more time-consuming and resource-intensive, it offers a definitive resolution and the opportunity for legal remedies such as reinstatement or compensation.

Ultimately, the choice between conciliation and formal hearing depends on various factors, including the nature of the dispute, the parties’ willingness to engage in negotiations, and the desired outcome. While conciliation emphasises cooperation and flexibility, the formal hearing ensures a rigorous examination of the case within a legal framework. Whichever path is chosen, seeking timely legal advice and representation can help navigate the complexities of the process and ensure the protection of one’s rights and interests.

For any or the issues listed above or for any other issue feel free to contact us today at 1300 244 342 or send us an email at and one of our employment lawyer would be happy to help.

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