Getting fired and unfair dismissal

For free and confidential legal advice about this topic, please contact us here.

It is important to know that any application to the Fair Work Commission about a dismissal must be lodged within 21 days after the dismissal took effect. If you lodge after 21 days, you must show that there were exceptional circumstances, which can be difficult to do. If you have missed the 21-day window and still want to make an application, contact us here for free advice.

Losing your job, or getting fired, can be a really hard and stressful experience. If you think you have been fired unfairly or for the wrong reason, you may have legal options that you can take.

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What is unfair dismissal?

Unfair dismissal is when your employer fired you, or forced you to quit, in a way that was harsh, unjust or unreasonable.

For example:

  • If your employer fires you without any valid reason;
  • If you were fired for poor performance without any warning.

What should I do if I’ve been fired?

The Fair Work Ombudsman has put together a helpful checklist to go through after you’ve been fired, which can be found here: I’ve been fired (Fair Work Ombudsman). If you think you were fired unfairly, it is a good idea to start with this checklist before considering taking legal action.

We also strongly recommend that you contact us for free and confidential legal advice here if you are unsure what to do next.

What legal options do I have?

The Fair Work Commission (FWC) is the place where you can make a formal legal application if you have been unfairly dismissed.

To be eligible to make an unfair dismissal application you:

  • Must have worked for your employer for at least 6 months (or 12 months if they are a small business (i.e. have fewer than 15 employees); and
  • have earned less than the high-income threshold (currently $167,500 a year). You can also be eligible if you earn more than this amount IF you are covered by modern award or an enterprise agreement. See our page on Modern Awards and Enterprise Agreements for more information on these types of arrangements.

You can check whether you are eligible to make an unfair dismissal application here: Unfair dismissal eligibility quiz.

What outcome can I achieve at the Fair Work Commission?

If the FWC finds that you have been unfairly dismissed, they can:

  • Order your former employer to give you back your job or a similar job at the same company. This is called “re-instatement”.  Re-instatement doesn’t happen often as the employment relationship may become strained; and/or
  • Order your former employer to compensate you for financial loss caused by the unfair dismissal. Generally, compensation will reflect how long a person has been out of work because of the unfair dismissal, based on their average weekly pay.  It is not possible to get compensation for any shock, distress humiliation or anxiety that you have suffered because of being unfairly dismissed.

How do I apply for an unfair dismissal at the Fair Work Commission?

For more information on how to make your own unfair dismissal application, see our factsheet, How to lodge an Unfair Dismissal Application, which provides a step by step process on how to fill out the application form. The following resources will also be useful if you decide to lodge an application:

  1. This page explains what happens after you lodge an application: Unfair Dismissal Applications – FAQ;
  2. This factsheet from the Fair Work Commission explains the entire process involved with Unfair Dismissal applications.

What if I am a casual and my employer has stopped rostering me on shifts?

If your employer has stopped rostering you on shifts at work, you may be able to make an unfair dismissal application if you have served the minimum employment period (6 months for a large business, 12 months for a small business with less than 15 employees), if you can show that you had a regular and systematic pattern of employment that you reasonably expected to continue, and that you were dismissed unfairly.

It is important to remember that casual workers have no rights to regular shift work or regular hours and so it can be difficult to prove that your employer has done something wrong.

What if I have not been employed for long enough to make an unfair dismissal application? Is my dismissal in breach of the “general protections”?

It is best to get specific advice to check whether your situation might involve a breach of the general protections and which sort of application to file.

If you have been dismissed in circumstances that are not just unfair, but unlawful, you may have the right to make a ‘general protections’ (dismissal) claim.

Here are some examples of where a dismissal would contravene the general protections provisions of the Fair Work Act 2009 (as well as possibly being unfair, or in breach of other workplace or anti-discrimination laws):

  • you were dismissed because you exercised a workplace right to raise a safety concern in your role as a Health & Safety Officer
  • you were dismissed because you exercised a workplace right to make an enquiry about a term in your employment contract
  • you were dismissed because you made a sexual harassment complaint
  • you stopped getting casual shifts because you complained about being underpaid
  • you were dismissed because you were temporarily absent from work due to illness or injury, despite providing the required notice and medical certificates
  • You were dismissed because of your race, religion, physical or mental disability, political opinion, sex or other protected personal characteristic that did not affect your ability to perform the inherent requirements of your role.

You can read more about the general protections here. If you think you have been fired in breach of the general protections or for some other unlawful reason, you can contact us here for free and confidential information and advice.

If you have a question that hasn’t been answered on this page, or you want to make an application, contact us here for free advice

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