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What is an unfair dismissal claim? The essentials to know for employees

Published on July 3, 2023 by Kate LathamKate Latham

In the Australian employment landscape, as an employee you’re entitled to certain rights and protections including the right to fair treatment and job security. However, there are instances when your employer may terminate your employment without a valid reason or fails to adhere to proper procedure. In this case, you have the option to make an unfair dismissal claim. This article explains what unfair dismissal claims are and the process involved.

What is unfair dismissal?

Unfair dismissal claims are primarily governed by The Fair Work Act 2009 (Cth) which provides protection to you as an eligible employee against unfair termination. The legislation sets out the rights and responsibilities of employers and employees and establishes the Fair Work Commission as the governing body responsible for resolving employment disputes.

The Act sets out the criteria for who can make an unfair dismissal claim, and the factors that are considered in deciding when a dismissal is considered to be “harsh, unjust or unreasonable.” While the legislation does not provide an exhaustive list of unfair reasons for termination, common situations where a claim might be successful can include:

• If you have been dismissed from your employment based on allegations about your conduct which were false or incorrect;
• If you have been dismissed for poor performance, but were not given clear warnings or opportunities to improve your performance;
• If you were dismissed due to an injury or illness which you were still recovering from;
• If you have been forced to resign by the conduct of your employer;
• If your employment was terminated for redundancy but your position has been given to another person;
• If you have been dismissed without being given a clear reason, or without being given a fair opportunity to respond to the reasons for dismissal.

Am I eligible to make a claim for unfair dismissal?

Most employees will be able to make a claim for unfair dismissal. However, to file a claim, you must meet certain criteria and you may not be eligible to make a claim if:

• You were employed by an employer for less than six months;
• You were a casual employee or seasonal employee;
• You were on probation at the time of dismissal;
• You were employed by a State Government in certain Australian ;
• You were a contractor or labour hire employee;
• Your employment was not covered by an award or enterprise agreement, and you earn more than the Unfair Dismissal High Income Threshold (this amount is updated and can be checked on the Fair Work Commission website;
• The termination of employment was a case of genuine redundancy and your employer complied with any consultation requirements;
• Your employer was a small business which complied with the Small Business Fair Dismissal Code.

Is there a time limit to bringing a claim?

An application for unfair dismissal must be made to the Fair Work Commission within 21 days of a termination taking effect. You are unlikely to be able to be entitled to compensation if you miss this deadline.

Even if you are not eligible to make an unfair dismissal claim, you may have another type of legal claim, so it is important to get legal advice quickly. If you are considering making a claim, we recommend you seek advice from a lawyer as soon as possible and before 21 days have elapsed since your termination. You can contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will assist you.