Eight ways a dismissal can be unfair, and who can claim

Who can claim unfair dismissal

Losing a job is hard, and the law does give many workers a way to challenge it. An unfair dismissal claim is made to the Fair Work Commission under the Fair Work Act 2009 (Cth). Before the Commission looks at whether the dismissal was fair, it checks that you are eligible.

You must have been an employee, not a genuine contractor. Since 26 August 2024 that is decided by the real substance of the working relationship, not just the label in the contract (s 15AA). You must have been dismissed, which means your employment ended on your employer's initiative, or you were forced to resign by your employer's conduct (s 386).

You must have served the minimum employment period (s 383): six months, or 12 months if your employer had fewer than 15 employees. Casual work counts only if you were a regular casual with a reasonable expectation of continuing work on a regular and systematic basis (s 384). Finally, you must be covered by a modern award or enterprise agreement, or earn less than the high income threshold. That threshold is $190,100 for dismissals from 1 July 2026; superannuation is not counted.

You must apply within 21 days after the dismissal took effect (s 394). The Commission can extend that only in exceptional circumstances. If you work in the WA state system, for example for a sole trader, a partnership or a WA public sector employer, your claim goes to the WA Industrial Relations Commission instead, and the time limit is 28 days.

How the Commission decides

The question is whether the dismissal was harsh, unjust or unreasonable. The Commission must consider each matter listed in s 387: whether there was a valid reason related to your capacity or conduct, whether you were told the reason and given a chance to respond, any unreasonable refusal of a support person, any warning about unsatisfactory performance, the size of the business and its access to human resources staff, and any other relevant matter.

A valid reason is one that is "sound, defensible or well founded" (Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333). These matters are weighed together. They are not a checklist where one missed step decides the case.

Eight situations that can make a dismissal unfair

The situations below come up again and again. Each can count strongly against an employer, but the outcome always depends on the whole picture.

(a) You did not do it. Where the reason is misconduct, the Commission decides for itself whether the conduct happened. If it did not, there is no valid reason.

(b) The punishment did not fit. Even if you did something wrong, it may not have been serious enough to justify dismissal, where a warning or retraining would have been proportionate.

(c) Poor performance was not fairly managed. It counts against the employer if the criticism was wrong, you were not given proper training or support, or you were not warned your job was at risk and given a fair chance to improve.

(d) You were treated differently. If others did the same thing and kept their jobs, the Commission can take that into account as another relevant matter.

(e) The redundancy was not genuine. Under s 389 a redundancy is genuine only if your job was no longer needed by anyone because of operational changes, the employer met any award or agreement duty to consult, and it would not have been reasonable to redeploy you within the business or an associated entity (Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578). If any one is missing, your claim can go ahead.

(f) You had no chance to respond. Your employer should tell you the reason clearly and give you a real opportunity to answer it before the decision is made.

(g) There was no reason at all. If you were let go out of the blue, the employer will have to show the Commission a valid reason and explain why you were not told of it.

(h) You were refused a support person. An employer does not have to offer one, but an unreasonable refusal when you ask is a factor the Commission weighs (s 387(d)).

Small businesses and the Code

If your employer had fewer than 15 employees, the dismissal is not unfair if the employer followed the Small Business Fair Dismissal Code (s 388). The Code allows summary dismissal where the employer reasonably believed the conduct was serious enough, such as theft or violence; otherwise it requires a valid reason, a warning and a chance to improve (Pinawin v Domingo [2012] FWAFB 1359).

What you can get, and other claims

The main remedy is reinstatement. If the Commission decides that is inappropriate, it can order compensation, capped at the lesser of 26 weeks' pay and half the high income threshold ($95,050 for dismissals from 1 July 2026). Nothing is awarded for shock, distress or humiliation (s 392(4)).

If you cannot claim unfair dismissal, for example because you earn above the threshold or are short of the minimum period, a general protections claim may be open. It has no minimum period and no income threshold, but it must be about why you were dismissed, such as for making a complaint or taking sick leave. From 7 July 2026 it is enough at the Commission stage to allege that you were dismissed. The same 21-day limit applies, so it is worth getting advice early.