A person has been unfairly dismissed if Fair Work Australia finds that:
- they were dismissed, and
- the dismissal was harsh, unjust or unreasonable, and
- the dismissal was not a case of genuine redundancy.
It’s not an unfair dismissal if the employer is a small business employer - employs fewer than 15 employees (up to 1 January 2011 this means 15 full-time equivalent employees) and they follow the Small Business Fair Dismissal Code when dismissing an employee.
To apply for unfair dismissal, you must be:
- covered by the national workplace system
- eligible to apply.
To be eligible to apply, you must have:
- completed a minimum employment period of at least 6 months (or 12 months if your employer is a small business employer who employs fewer than 15 full-time equivalent employees)
- at the time of dismissal, been in one of the following categories
- covered by a modern award
- covered by a pre-modern award instrument, such as a federal award, a state reference transitional award or a notional agreement preserving state award (NAPSA)
- covered by an enterprise agreement or an agreement based transitional instrument, or earning less than $113,800 a year
Where to go
If you believe you’ve been unfairly dismissed, you can apply to Fair Work Australia (FWA) for a remedy.
Note: The Fair Work Ombudsman (FWO) doesn’t investigate unfair dismissal complaints, but you can lodge an application for unfair dismissal at a FWO office.
You must apply to Fair Work Australia (FWA) within 14 days after a dismissal takes effect, although FWA may accept late applications in limited circumstances. Employees are required to pay an application fee. This fee may be waived on the grounds that its payment would cause serious hardship.
What happens next?
When you apply, FWA will check the application to see if it’s complete. FWA will notify your employer.
Usually, a conciliation is then arranged, to assist both sides to resolve the matter by agreement.
If a resolution can’t be reached, a conference or hearing will be held and if FWA finds that the dismissal was unfair, your employer can be ordered to either:
- reinstate you (give you back your job), or
- compensate you for up to 26 weeks pay (up to a maximum amount of $56,900).