Unlawful dismissal or unlawful termination is when you’re sacked for exercising your rights. This could be if you’re sacked because you made a claim for unpaid wages or a sexual harassment complaint. It’s also unlawful to be sacked for discrimination due to your race, sexual orientation or other personal characteristics.
Unfair dismissal is when you’re sacked in a harsh, unjust or unreasonable manner. For example, it’s unfair if you’re sacked for making a mistake when you haven’t been properly trained on what to do. It’s also unfair if you’re sacked without having a chance to explain your side of the story.
If you think you’ve been unfairly or unlawfully dismissed, you can make a claim to be compensated for lost pay, or to be given your job back.
You will need to show evidence of your claim. You should seek legal advice.
You need to make a claim for unfair or unlawful dismissal within three weeks (21 days) of being dismissed.
It's unlawful for you to lose your job because:
- you missed work due to sickness or injury
- you missed work because you were doing voluntary emergency management duties (like the CFA or SES)
- you missed work due to maternity leave or parental leave
- you acted as a union representative for fellow employees
- you took court action against your employer
- you made a complaint about your employer
- you joined a union, or did not join a union
- you took industrial action, or did not take industrial action.
You also can't legally be dismissed because of:
- physical features
- sexual orientation or gender identity
- religion and religious practices
- political views and actions
- marital status (whether you’re married or not)
- race or cultural background
- being pregnant or breastfeeding
- being a parent (or not)
- being a carer for someone
- having a disability or impairment
- personal association with someone with any of these personal characteristics.
For more about discrimination visit our Discrimination at work page.
If you think you've been dismissed for any of the above reasons, you may have a case for unlawful dismissal. You should contact the Fair Work Commission within 21 days of being sacked.
Visit the Fair Work Commission website for more information on what to do if you think you’ve been unlawfully dismissed.
(Note: The Fair Work COMMISSION, which looks after unfair dismissal claims, is different from the Fair Work OMBUDSMAN, which provides advice about and enforces Australian employment law.)
If you think you’ve been sacked unfairly, you can apply to make a claim for unfair dismissal. You need to have been working continuously for:
- one year in a small business (fewer than 15 employees)
- six months in a medium or big business (more than 15 employees).
You must also:
- actually have been sacked (rather than having quit)
- be covered by a modern award or enterprise agreement (to find out if you’re covered, contact the Fair Work Ombudsman on 13 13 94 or via an online enquiry)
- earn less than the high-income threshold (this changes each year, but it was $142,000 in 2017–18).
The Fair Work Commission has an online quiz that you can take to see if you're eligible to make an unfair dismissal claim.
Making a claim for unfair dismissal
You must make a claim for unfair dismissal to the Fair Work Commission within 21 days of being dismissed.
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.
If you worked for a small business
If you worked for a small business that employs fewer than 15 full-time equivalent employees, the rules are slightly different.
As long as your employer followed the process set out in the Small Business Fair Dismissal Code, they are within their rights to sack you.
JobWatch's Unfair dismissal page includes some good advice about small business and unfair dismissal.
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, here are some organisations you can contact:
- JobWatch – (03) 9662 1933 (if you're in Melbourne) or 1800 331 617 (if you're outside Melbourne), or email email@example.com
- Fair Work Commission Helpline - 1300 799 675, or visit their dismissals enquiry page
- Fair Work Infoline - 13 13 94, or make an online enquiry
- Australian Council of Trade Unions Worker Information line (for referral to a union) - 1300 362 223, or make an online enquiry
- Law Institute of Victoria (for referral to a lawyer) - (03) 9607 9550, or email firstname.lastname@example.org
- Australian Human Rights Commission - 1300 656 419, or make an online enquiry
- Victorian Equal Opportunity and Human Rights Commission - (03) 9281 7111 or 1800 134 142, or email email@example.com
If you have trouble hearing or speaking, you can use the National Relay Service.