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What is Unfair Dismissal?

Unfair Dismissal - Definition by the Fair Work Commission

The definition that the Fair Work Commission uses to decide whether a dismissal was unfair is whether it was "harsh, unjust or unreasonable". When the Commission looks at your situation, they will not only look at why you were dismissed, they will also look at how you were dismissed.

Unfair dismissal cases are dealt with by the Fair Work Commission. The Fair Work Commission can award important remedies for employees, including reinstatement to the job, or financial compensation.

A key principle underpinning the unfair dismissal laws is that there should be a "fair go all round" – both for employees and employers.

What does "dismissed" mean?

The two meanings of “dismissed” in the Fair Work Act are:

  • When your employment has been terminated “on the employer’s initiative”; or
  • Where you were forced to resign because of the conduct or a course of conduct by your employer.

Most importantly, being dismissed does not include things like:

  • Being demoted, without a significant reduction in your duties or remuneration, where you remain employed in the demoted position; or
  • The end of a fixed-term or fixed task contract.

Some of the things the Fair Work Commission will look at include:

  • Whether there was a valid reason for your dismissal related to your "capacity" to do the job, or your "conduct" on the job
  • Whether you were notified of the reason
  • Whether you were given an opportunity to respond to the reason

This isn't an exhaustive list, and we discuss specific reasons why you might be able to claim unfair dismissal below.

Can I claim for unfair dismissal?

You can make a claim for unfair dismissal if:

  • You have to be an employee, and you have to have been dismissed. That sounds obvious, but there are situations where a worker may be an independent contractor not an employee, and where what feels like a dismissal isn’t (for example, the end of a fixed-term contract).
  • You need to prove that you are eligible to make an unfair dismissal claim. Some kinds of employees aren’t eligible to use the unfair dismissal laws – for example, if you work for a State government, in many States you may not be covered by the Fair Work Act unfair dismissal laws.

There are also eligibility criteria for unfair dismissal that include:

  • Your salary if more than $138,900* (high-income earners may not be eligible to file a claim)
  • How long you’ve worked for your employer
  • Type of employee you are
  • The size of your former employer's company, and their level of specialist human resources support
  • There is also a time limit for lodging a claim of 21 days, counted from the date your dismissal took effect
  • The state you work in

*There are a number of factors that need to be considered in calculating this figure and you should discuss this with an expert.

See more information on unfair dismissal eligibility.

Unfairly Dismissed?

Use our online tool to determine if you are eligible for a claim with Slater and Gordon.

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