What is Unfair dismissal?
Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.
The Fair Work Commission (the Commission) decides on cases of unfair dismissal.
Applying for unfair dismissal
Employees must apply to the Commission within 21 days of the dismissal taking effect.
If you believe you have been unfairly dismissed you need to contact the Commission as soon as possible. Alternatively, if you would like to terminate an employee, its best you speak to a lawyer to ensure that you comply with the law.
Minimum employment period
Employees have to be employed for at least 6 months before they can apply for unfair dismissal.
Employees working for a small business have to be employed for at least 12 months before they can apply.
If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
Small business employers
Small businesses have different rules for dismissal. A small business is defined as any business with fewer than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis.
The Small Business Fair Dismissal Code provides protection against unfair dismissal claims, where an employer follows the Code. The Commission will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this.
Employees can also apply to the Commission if they’ve been dismissed on the basis of:
- a breach of general protections; or
- unlawful termination.
A person has been dismissed from their employment when:
- their employment has been terminated at the initiative of the employer; or
- they have resigned their employment but the resignation was forced by something the employer did.
If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.