Losing your job
There are laws in Australia about:
If you’ve lost your job and think it’s unfair, it’s important to get legal advice about the best claim to make to suit your situation . Once you make a job termination claim , you may lose your rights to make a different claim that may have been better for you. There are strict time limits involved, so act quickly.
A demotion occurs when your job conditions are changed to reduce your pay or duties. A demotion can mean the end of an existing employment contract and the start of a new one.
In some circumstances, a demotion may be an unfair dismissal. If you were demoted, but the demotion does not involve a significant reduction in wages or duties and you remain employed by the employer that reduced the duties, then you’re not eligible to apply for unfair dismissal.
If you’re demoted because you have a workplace right, exercise a workplace right or propose to exercise a workplace right, you may be able to make a general protections claim.
If you’re demoted because of discrimination against you because of a protected attribute (eg race, disability, sex, sexuality), you may be able to make a discrimination claim.
You should get legal advice.
Redundancy is when, through no fault of your own, your employer no longer needs anyone to do your job.
Redundancy can happen when an employer:
- becomes insolvent or bankrupt
- introduces a new technology (eg the job can be done by a machine)
- relocates interstate or overseas
- is going through a relocation, merger, takeover or restructure.
A genuine redundancy is when:
- your job doesn’t need to be done by anyone and
- the employer has followed the correct consultation requirements in the award, enterprise agreement or other registered agreement.
If the redundancy is genuine, you can’t make a claim for unfair dismissal .
It’s not a genuine redundancy if the employer:
- still needs your job to be done by someone (eg they hire someone else to do your job)
- doesn’t follow the consultation requirements
- could have reasonably given you another job.
If you’re made redundant, you may be entitled to redundancy pay.
The Fair Work Ombudsman has information about redundancy, redundancy pay and entitlements.
If you think you haven’t received the right amount of redundancy pay, you can contact the Fair Work Ombudsman for help to recover any outstanding pay.
If you have concerns about a redundancy, you should get legal advice.
You're dismissed if your employer terminates your employment or you were forced to resign because of conduct engaged in by your employer (called constructive dismissal or forced resignation).
Not all dismissals are unlawful. State and Commonwealth employment laws cover unfair dismissal. You should get legal advice if you think you have been unfairly dismissed.
Unfair dismissal under Commonwealth law
Under Commonwealth law, an employee's dismissal is unfair if it’s harsh, unjust or unreasonable —this is determined by considering several issues, including whether:
- there was a valid reason related to your capacity or conduct
- you were informed of that reason
- you were given an opportunity to respond.
You’re not covered by Commonwealth unfair dismissal laws if you:
- are employed by a state or local government
- haven’t completed the minimum employment period (6 months for businesses with 15 or more employees; 12 months for businesses with less than 15 employees)
- are employed by a small business (less than 15 employees) and the employer has followed the Small Business Fair Dismissal Code
- are a casual employee, unless you were employed on a regular and systematic basis and you had a reasonable expectation your job would continue
- are an independent contractor
- earn more than the high income threshold (currently $136,700 a year ) and aren’t employed under a modern award or enterprise agreement
- were employed for a stated period of time, season or training arrangement and you’re terminated at the end of that time
- were made redundant and it was a genuine redundancy.
If you’re not sure if you’re covered, you should get legal advice.
Making an unfair dismissal claim under Commonwealth law
Complaints about unfair dismissal under Commonwealth employment law should be made to the Fair Work Commission . An application for unfair dismissal must be lodged with the Commission within 21 days after your employment is terminated. The Commission can extend this period, but will only do so in exceptional circumstances.
If you make an unfair dismissal application, you might not be able to take other forms of legal action to resolve your dispute (eg a general protections claim or discrimination claim).
When an unfair dismissal application is made, the Commission will send a copy of the application to the employer. The employer will have to respond in writing. The Commission then holds a conciliation conference to help you and your employer to resolve your dispute. This usually happens over the phone.
If you resolve your dispute your agreement will be put in writing and your unfair dismissal application will be withdrawn.
If your dispute can’t be resolved your matter will be listed for a conference or a hearing for a Commission member to decide whether the dismissal was considered unfair.
If the Commission member is satisfied you were unfairly dismissed then it may order you be reinstated to your job, be paid any lost wages and be given continuity of service. If satisfied that reinstatement is not appropriate, it will consider ordering your employer pay you compensation (only up to a maximum of 26 weeks wages or half the high income threshold - $136,700 - whichever is less).
If you’re not happy with the outcome of your conference or hearing you may be able to appeal. If you’re considering an appeal, get legal advice.
You can only be represented by a lawyer if the Commission gives them permission to appear.
There’ll be a fee for filing your unfair dismissal application—but you can make a request for it to be waived if it would cause serious hardship.
In a matter before the Fair Work Commission, each party usually pays their own costs. In some situations the Commission may make an order for one party to pay the costs incurred by the other party.
Unfair dismissal under state law
We don’t give legal advice about unfair dismissal under state law.
For more information visit the Queensland Industrial Relations Commission website and get legal advice.
Breach of general protections
If you were employed under Commonwealth employment law and you think your employer dismissed you in breach of general protections, you may be able to make a general protections claim.
You should get legal advice.
If you’re dismissed by an employer, you should get a separation certificate if you want to claim benefits from Centrelink. Once you ask for a separation certificate your employer has 14 days to give it to you or fax it to Centrelink. You should also get a certificate of service detailing your period of service and duties performed.
If your employer hasn’t given you a separation certificate within 14 days — contact Centrelink.
Breach of contract or loss of commission
If your employment contract has been terminated and you want to make a claim for breach of contract or loss of commission, you should get legal advice about your options from a private lawyer.
Do I need legal advice?
You may need legal advice if you:
- think there has been a breach of an employment contract, award or agreement
- have been unfairly dismissed
- think your employer has breached your general protections
- have been unlawfully terminated
- have been made redundant
- have been demoted
- have a dispute with a current or former employer.
How to get legal advice
We may give legal advice to employees on employment matters, including individuals who have been discriminated against in the workplace.
We can’t give legal advice:
- about enterprise bargaining or modern awards
- about breach of contract matters
- to state and local government employees regarding unfair dismissal or unlawful termination
- to employers or genuine independent contractors.
If we can’t help, we may be able to refer you to other services that may be able to help .
Caxton Legal Centre—Employment law advice service can give advice about unfair, unlawful and constructive dismissal, workplace bullying and discrimination matters. Contact them to find out if they can help.
LawRight Self Representation Service (Federal) gives legal advice and help to people involved in civil proceedings in the Federal Circuit and Family Court of Australia or Federal Court for matters involving employment. They may also help with drafting documents and correspondence relating to your legal matter. They don’t provide legal representation.
LGBTI Legal Service gives free legal advice and information to LGBTI clients, including legal advice relating to employment.
Queensland Law Society can refer you to a private lawyer who can give advice to employees, employers and contractors about employment and industrial law, and can also represent you.
Who else can help?
The following organisations may be able to help you . They don’t give legal advice.
Commonwealth Fair Work Ombudsman (FWO) gives information and advice on workplace laws, rights and obligations, and investigates complaints and suspected contraventions of workplace laws, awards and agreements. The FWO can help if you have been working under a sham contract preventing you from being paid entitlements.
Fair Work Commission is the national workplace relations tribunal and can provide information about unfair dismissals, general protections, workplace bullying and harassment, and how to lodge an application.
Apprenticeships Info gives free advice, referrals and support to all Queenslanders about apprenticeships, traineeships and training options.
Office of Industrial Relations - Queensland gives information about workplace relations including long service leave, child employment, private employment agents, trading hours, workers' accommodation, public holidays, and wages and conditions for public sector and local government employees.n
Queensland Industrial Relations Commission is an independent tribunal established to conciliate and arbitrate industrial matters in Queensland. The QIRC provides information about whether you are covered by state or federal legislation.
WorkSafe Qld is the state government department that deals with complaints about workplace harassment, safety and fatigue. They also provide information on making a complaint internally through your workplace, or externally through their complaints process.
Department of Industry - Single Business Service gives information and referral services to independent contractors.
Australian Council of Trade Unions give help to union members about employment matters .
Queensland Human Rights Commission gives information and helps resolve complaints about discrimination in public life, including in the workplace.
Australian Human Rights Commission gives information on human rights and resolves complaints about discrimination or breaches of human rights under federal laws.
Queensland Working Women's Service provides a free, confidential advisory service to help Queensland women with work related matters. The QWWS may also assist with advocacy and referrals about industrial relations matters including employment rights, unfair dismissal, discrimination and harassment.
Financial counselling can help if you are experiencing financial difficulty because of illness or job loss. They may be able to help arrange payments to be reduced or postponed.
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
Last updated 9 November 2022
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