Unfair dismissal – What can I do?

Dismissal is defined as a situation where the employment has been terminated on the employer’s initiative, or where an employee was forced to resign due to the employer’s conduct. For more information please check out our article on Dismissal from employment.

Unfair dismissal, on the other hand, is defined as a dismissal that was:

  • Harsh, unjust or unreasonable; and
  • Not consistent with the Small Business Fair Dismissal Code (if employee works for a small business); and
  • Not a case of genuine redundancy.

How can we help you?

An unfair dismissal claim is a very serious matter that should not be taken lightly. Talk to us today and our employment experts will assist you to answer the following:

  • Was there a valid reason for the dismissal?
  • Was the employee notified of that reason?
  • Was the employee given an opportunity to respond?
  • Was the employee warned about unsatisfactory performance?
  • In case of a serious misconduct, was a proper investigation conducted?
  • Is the evidence sufficient?
  • Is the employer considered a small business?

Our employment law experts can advise employees and employers on all aspects of unfair dismissal claims, walk you through the relevant legislation and make sure your interests are protected.

Who can claim unfair dismissal?

Unfair dismissal claims can be made only by certain employees who satisfy eligibility criteria. In general, unfair dismissal claims can be brought by employees employed for at least 6 months with their employer. However, employees working for a small business are required to be employed for at least 12 months before they can make such a claim.

Volunteers, unpaid interns and work-experience participants are not eligible to bring unfair dismissal claim. The same applies to independent contractors, unless they are treated more like employees (more on this here).

What defines a small business employer?

A small business employer is an employer with less than 15 employees. All permanent employees at the time of the dismissal are to be considered, including:

  • Regular and systematic casual employees, and
  • Employees of associated entities (even if based abroad).

Small business employers are obliged to comply with the Small Business Fair Dismissal Code and keep evidence to document the compliance.

Is there a time limit for bringing unfair dismissal claims?

Unfair dismissal claims can be brought only if made within 21 days of the dismissal taking effect. If the dismissal took effect more than 21 days ago, the employee would generally be prevented from making such a claim. However, the Fair Work Commission may accept late applications in exceptional circumstances.

What else can we help you with?

Contact our team today to discuss how we can best help you. Elringtons will provide you with expert legal support in all areas of employment, for further information see:

We offer an initial consultation and review of your case for a flat rate fee. Contact us for more information.

e: info@elringtons.com.au | p: +61 2 6206 1300