What To Do If You Have Been Dismissed

Losing your job is never easy, but it doesn't have to be the end of the world. This step-by-step checklist sets out what to do after a dismissal, starting with the deadline that matters most.

Losing your job is difficult. It is often unexpected, and it affects not only you but your family.

Even though it may be hard right now, in time you will move past it. For many of our clients who have been terminated unlawfully, making a claim helps by:

standing up to the employer;

getting closure;

moving on with life; and

obtaining financial compensation.

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Here is our checklist, in the order that matters:

Find your deadline. Work out the day your dismissal took effect and count 21 calendar days from it. That is your deadline to lodge an unfair dismissal or general protections claim with the Fair Work Commission. If you work in the WA state system (for example for a sole trader, partnership, WA government agency or WA local government), the limit for an unfair dismissal claim in the WA Industrial Relations Commission is 28 days instead; see unfair dismissal in the WA state system.

Get advice early, ideally in the first week, so there is time to choose the right claim.

Don’t sign a deed, release or separation agreement until you have had advice.

Write down what happened while it is fresh: dates, who said what, and who was there.

Collect your documents: contract, termination letter, payslips, warnings, and any emails or messages you are entitled to keep.

Check your final pay: notice, unused annual leave, long service leave and redundancy pay.

Look for work, and keep a record of your applications. It matters if you claim compensation.

Look after yourself. See your GP if the stress is affecting your health, and keep the records.

Each step is explained below.

Act Quickly – You Only Have 21 Days

You have 21 days from the day your dismissal took effect to lodge an unfair dismissal claim (s 394 of the Fair Work Act 2009 (Cth)) or a general protections claim involving dismissal (s 366). The dismissal takes effect when it is communicated to you. If you were paid in lieu of notice, that is usually immediately; if you are working out notice, it is usually your last day of that notice. Weekends and public holidays count.

A late claim is accepted only in exceptional circumstances, and many are refused. Not knowing about the time limit is usually not enough. Do not wait for your final pay, a reference or an internal appeal before acting.

We recommend you contact our office for a free discussion about your circumstances. There is no obligation to engage us, and we are happy to help in this difficult time.

Get The Right Advice

It is important to find out whether your dismissal was lawful. You may be able to bring an unfair dismissal claim, a general protections claim, or an unlawful termination claim. You generally cannot bring more than one of these about the same dismissal, so the choice matters, and it is hard to undo once made.

Our employment lawyers are experts in assisting employees who have been dismissed. We have run hundreds of dismissal claims, and we lodge dismissal claims every week. The lawyer working on your case practises exclusively in employment law. Contact us for a free, confidential discussion, and in many cases we can give you an early indication of whether you have a claim.

Act Reasonably If You're Working Out Your Notice Period

If you have been given notice and asked to work it out, you are still employed and still bound by your ordinary duties. Don’t do anything that could give your employer a reason to end your employment early for misconduct.

If you are working out your notice, the 21 days usually start from the end of the notice period, when the dismissal takes effect. If you are unsure which date applies, treat the earlier date as your deadline and get advice.

Act Reasonably If You're Working Out Your Notice Period

Collect Evidence

Collect the evidence you are entitled to have. The most useful things are your contract, the termination letter or message, payslips, any warnings or performance documents, and notes of meetings. Some things to bear in mind:

Only take what you are entitled to access. Do not forward confidential business documents to yourself or copy files you are not allowed to have. That can be misconduct, or a breach of your confidentiality obligations, and can hurt your case.

Do not secretly record conversations without getting legal advice first. In Western Australia, recording a private conversation without consent can be an offence under the Surveillance Devices Act 1998 (WA), subject to limited exceptions. Instead, make detailed notes straight after each meeting. You can rely on your notes as evidence.

Anything else you have lawfully, such as messages sent to your personal phone, can be used as evidence.

A gap in your documents is not a problem. We can seek documents from your employer later if a claim goes ahead.

Ask For A Support Person If Needed

If you are called to a meeting that could lead to your dismissal, you can ask to bring a support person. Your employer does not have to offer one, but if you ask and your employer unreasonably refuses, the Fair Work Commission takes that into account in an unfair dismissal claim (s 387(d)). A support person is there to support you and take notes; they are not an advocate and do not normally speak for you. See our page on show cause letters for how to handle these meetings.

Don't Sign Any Documents

If your employment is terminated, you do not have to sign anything. Sometimes an employer asks an employee to sign a settlement agreement, deed of release or separation agreement on the spot, often in exchange for a modest payment. If you sign, you will usually give up your right to bring a claim, even if the dismissal was unlawful. Ask for time, take the document away and get advice before signing. A reasonable employer will give you a few days.

Check Your Final Pay

Check that your final pay is correct. Most awards require final pay within 7 days of your last day. Read our page on notice and final pay and the Fair Work Ombudsman’s guide to final pay.

You are entitled to be paid your wages up to your last day and your unused annual leave. Personal (sick) leave is not usually paid out, unless your contract, award or agreement says so.

If you were made redundant, you may be entitled to redundancy pay (see redundancy pay). In WA you may also be entitled to a pro rata long service leave payment if you have 7 years or more of continuous service and your employment ended for a reason other than serious misconduct.

Check that you received the right notice, or pay in lieu. The Fair Work Act minimum is 1 to 4 weeks depending on your length of service, plus an extra week if you are over 45 and have at least 2 years’ service. Your contract or award may give you more.

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