Unfair Dismissal & Unlawful Termination

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"Unfair dismissal", sometimes also called "unlawful termination", is when you lose your job in a harsh, unjust or unreasonable manner.

If you think you have lost your job unfairly or unlawfully, you can apply to be compensated for lost pay or be given your job back.

It's important to act fast, though, because you can only make a claim for unfair dismissal within three weeks (21 days) of being dismissed.

Note that if you work for a business that employs 15 people or less, the rules about unfair dismissal are a little different - check out "If You Work for a Small Business" (below) for more info.

Topics on this page include:

> What you can't be dismissed for
> If you feel like you are being forced to quit
> How to apply for unfair dismissal
> What happens after you apply for unfair dismissal
> If you work for a small business
> Getting help with unfair dismissal claims
> Links to helpful organisations

What you can't be fired for

It's illegal for you to lose your job because of:

  • Being absent from work because you were sick or injured
  • Being absent from work to engage in a voluntary emergency management activity (e.g., if you're a member of the CFA or SES)
  • Being absent from work during maternity leave or other parental leave
  • Acting as a representative of fellow employees (e.g., being a union rep)
  • Taking court action against your employer
  • Making a complaint about your employer
  • Being a member of a union (or NOT being a member of a union)
  • Taking (or refusing to take) industrial action (e.g., going on strike)

You also can't legally be dismissed because of your:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer's responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction
  • Social origin

For more about discrimination, check out our Discrimination at work page.

If you think you've been dismissed for any of the above reasons - or any other reason that you think is unfair, you may have a case for unfair dismissal.

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Constructive dismissal - When you feel like you're being forced to quit

In some cases you may feel like you have no choice but to quit your job because of the way that your employer is treating you. It might be something that your employer is doing (or NOT doing) or something that they say to you that makes you feel this way.

Cases like this are known as "constructive dismissal". The idea is that your employer is deliberately making your work so hard that they are forcing you to quit.

It can be quite difficult to prove constructive dismissal has happened, but if you do prove it you are entitled to compensation. Because it's difficult to prove, you should make very sure before you quit if you plan on claiming constructive dismissal.

For more information and advice on constructive dismissal, check out Jobwatch's Constructive Dismissal page (new window).

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How to apply for unfair dismissal

If you think you've been unfairly dismissed, you need to contact the Fair Work Commission (new window) no later than 21 days after your dismissal takes effect (which is usually be your last day on the job).

(Note: The Fair Work COMMISSION, who look after unfair dismissal claims, is different from the Fair Work OMBUDSMAN, who provide advice about and enforce Australian employment law.)

To be eligible to apply for unfair dismissal, you must have been:

  • A permanent employee (full-time, part-time or regular casual)
  • Working for your employer for at least 6 months (note that  you need to have been working for your employer for 12 months if they employ less than 15 full-time staff)
  • Actually sacked by your employer and not quit (except in the case of proven constructive dismissal - see above)
  • Covered by a modern award or enterprise agreement (to find out if you are covered, you can call the Fair Work info line on 13 13 94)
  • Earning less than the "high income threshold" (in 2014 the threshold is $129,300, but this amount changes over time)

The Fair Work Commission has a helpful online quiz (new window) that you can take to see if you're eligible to make an unfair dismissal claim.

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What happens after you apply for unfair dismissal

After you've made your application, the Fair Work Commission 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, at the hearing, the Commission finds that your dismissal was unfair, your employer can be ordered to either:

  • Give you your job back
  • Compensate you for lost pay
  • Give you your job back AND compensate you for lost pay

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If you work for a small business

If you worked for a small business that employs less than 15 full-time equivalent employees, the rules are slightly different. As long as your employer has followed the rules outlined in the Small Business Fair Dismissal Code when dismissing you, they are within their rights to do so.

The rules around unfair dismissal and small business are a bit trickier to get your head around, but JobWatch's Termination of Employment page (new window) has a link to its Unfair Dismissal information sheet, which includes some good advice about small business and unfair dismissal.

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Getting help with unfair dismissal claims

If you need help preparing an unfair dismissal claim, or just need advice on how to go about it, you can contact the following organisations:

  • JobWatch - (03) 9662 1933 (if you're in Melbourne) or 1800 331 617 (if you're outside Melbourne)
  • Fair Work Commission Helpline - 1300 799 675
  • Fair Work Infoline - 13 13 94
  • Australian Council of Trade Unions Worker Information line (for referral to a union) - 1300 362 223 
  • Law Institute of Victoria (for referral to a lawyer) - (03) 9607 9550
  • Australian Human Rights Commission - 1300 656 419
  • Victorian Equal Opportunity and Human Rights Commission - (03) 9281 7111 or 1800 134 142

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Links

JobWatch
Statewide community legal centre specialising in issues for workers in Victoria, and offering free and confidential advice

Fair Work Commission
The national workplace relations tribunal, handling cases of unfair dismissal.

Fair Work Ombudsman
Gives advice about Australia’s national workplace relations system, and helps people understand their workplace rights and responsibilities.

Australian Council of Trade Unions (ACTU)
A national organisation representing Australian workers.

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