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Unfair Dismissal

An unfair dismissal claim is a claim that your dismissal from employment was harsh, unjust or unreasonable, and not consistent with the Small Business Fair Dismissal Code (if applicable), and not a case of genuine redundancy.

If you have been dismissed from your job and you believe it was unfair, you may have grounds to make an unfair dismissal claim at the Fair Work Commission (FWC). If eligible, you have 21 days from the date your dismissal took effect to file your claim.

An unfair dismissal claim is a claim that your dismissal from employment was:

  • harsh, unjust or unreasonable; and
  • not consistent with the Small Business Fair Dismissal Code (if applicable); and
  • not a case of genuine redundancy.

You have been dismissed if:

  • your employment has been terminated at the initiative of your employer; or
  • you resigned from your employment because you were forced to do so because of conduct, or a course of conduct engaged in by your employer (constructive dismissal); or
  • you were employed under a contract of employment for a specified period or time, task or season and you were terminated prior to the end of the contract.

You have not been dismissed if:

  • you were employed under a contract of employment for a specific period of time, task or season and your employment has terminated
    at the end of the period, season or completion of the task; or
  • you were an employee to which a training arrangement applied and your employment was for a specified period of time because of a training agreement and your employment was terminated at the end of the training arrangement; or
  • you were demoted in employment but the demotion does not involve a significant reduction in remuneration or duties and you are still employed by the employer who demoted you.

Note: If your contract appears to be for a specific period but can be ended earlier by the giving of notice, then your contract may not be a genuine fixed term contract and you may be dismissed at your employer’s initiative if your contract is not renewed. If this applies to you, you should obtain legal advice as soon as possible.

Harsh, unjust or unreasonable?

In examining whether a dismissal is harsh, unjust or unreasonable, FWC must take into account the following:

  • whether there was a valid reason for the dismissal relating to your capacity or conduct (including any effect on the safety and welfare of other employees);
  • whether you were notified of that reason;
  • whether you were given an opportunity to respond to any reason related to your capacity or conduct;
  • any unreasonable refusal by your employer to allow you to have a support person present to assist at any discussions relating to dismissal;
  • if the dismissal is related to unsatisfactory performance — whether you had been warned about that unsatisfactory performance before the dismissal;
  • the degree to which the size of your employer’s business would be likely to impact on the procedures followed in effecting the dismissal;
  • the degree to which the absence of dedicated human resource management specialists or expertise in the business would be likely to impact on the procedures followed in effecting the dismissal; and
  • any other matters FWC considers relevant.

More information including information relevant to small businesses, minimum employment periods and how to make an unfair dismissal claim can be found in the attached fact sheet, which we recommend you download.

For further support

Call our Telephone Information Service on Melbourne Metro (03) 9662 1933 or Regional Victoria, Queensland and Tasmania on 1800 331 617.

Unfair Dismissal

Here’s a quick 44 second video giving a quick overview of what an unfair dismissal claim is, and how to know if your dismissal was harsh, unjust or unreasonable.

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