Unfair dismissal and unlawful termination
If you think you have lost your job unfairly or unlawfully, you can apply through the Fair Work system to be compensated or reinstated.
Unfair dismissal is when the dismissal was:
- Harsh, unjust or unreasonable, and
- Not a case for genuine redundancy
If you worked for a small business (fewer than 15 full-time equivalent employees*), the rules are slightly different. As long as your employer has followed the Small Business Fair Dismissal Code (new window) when dismissing you, they are within their rights.
* In 2011, this number will be based on a simple headcount
Applying for unfair dismissal
You must apply to Fair Work Australia (FWA) (new window) within 14 days after the dismissal takes effect.
To be eligible to apply for unfair dismissal, you must have been:
- An employee (full-time, part-time or regular casual) and not a contractor
- Working for your employer for a minimum of 6 months (or 12 months if they are a small business, employing less than 15 full-time staff)
- Actually sacked by your employer and not quit
- Covered by a modern award or enterprise agreement (call the Fair Work info line, 13 13 94, to find out if you are covered)
- Earning less than $108,300 a year (this amount changes over time)
After applying, FWA will notify your employer. Usually, a meeting is arranged to try and come to a resolution. If no agreement is reached, a hearing may be held. If FWA finds the dismissal was unfair, your employer can be ordered to either:
- Give you your job back, or
- Compensate you for lost pay;
- Or both
For more information on unfair dismissal, visit JobWatch's Termination of Employment (new window) section or call the Fair Work Ombudsman 13 13 94.
It can be illegal to lose your job due to:
- Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin
- Absence from work because you were sick or injured
- Absence from work to engage in a voluntary emergency management activity (e.g. CFA or SES)
- Being absent from work during maternity leave or other parental leave
- Trade union membership or non-membership
- Seeking office as, or acting as, a representative of employees
- Filing a complaint, or be involved in proceedings against an employer
Applying for unlawful termination
You must lodge your application to Fair Work Australia (new window) within 60 days after the dismissal takes effect. FWA can be contacted on 1300 799 675 and will guide you through the process of making your complaint.
Once your application has been received, FWA will organise a meeting between you and your employer. If a resolution can’t be reached, FWA can issue a ‘certificate’, which gives you the right to take the matter to court.
The office of the Fair Work Ombudsman (FWO) might also get involved. They have the power to seek penalties against employers and assist you in making a financial claim.
Discrimination and unlawful termination are often related.
Visit our Discrimination at work page for more information on this topic.
Statewide community legal centre specialising in issues for workers in Victoria, and offering free and confidential advice
Fair Work Ombudsman
Gives advice about Australia’s national workplace relations system, and helps people understand their workplace rights and responsibilities
Fair Work Australia
The national workplace relations tribunal
Australian Council of Trade Unions (ACTU)
A national organisation representing the Australian workforce