Losing your job - unfair dismissal

If you’ve lost your job and think it’s unfair, it’s important to get legal advice quickly so you don’t lose your rights to make an appropriate claim. 

When you need legal advice

Get 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

Unfair dismissal

Unfair dismissal can happen when:

  • your employer terminates your employment
  • you were forced to resign in response to your employer’s conduct—this is called constructive dismissal or forced resignation
  • you were made redundant and it wasn’t a genuine redundancy
  • you were demoted and had a significant reduction in pay or duties

Get legal advice if you think you have been unfairly dismissed.

Demotion

A demotion happens when your job conditions have changed and usually means your pay or duties are reduced.

What you should know about a demotion:

  • 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 without a significant reduction in pay or duties and continue to work for the same employer, this won’t be a dismissal, so you’re not eligible to apply for unfair dismissal.
  • If you’re demoted because you exercised your workplace rights (e.g. taking personal leave when you were sick or asking about your right to overtime pay), then you may be able to make a general protections claim.
  • If you’re demoted because of a protected attribute (e.g. race, disability, sex, sexuality), you may be able to make a general protections claim or discrimination claim. You can only choose one.

Redundancy

You can be made redundant when your employer no longer needs your job done by anyone.

You can be made redundant if your employer:

  • becomes insolvent or bankrupt
  • introduces a new technology (e.g. your 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
  • the employer has followed the correct consultation requirements in the award, enterprise agreement or other registered agreement
  • no other jobs could have reasonably been given to you.

You can’t make an unfair dismissal claim if your redundancy is genuine.

Unfair dismissal under Commonwealth law

Unfair dismissals under Commonwealth (Australia-wide) law are outlined in the Fair Work Act 2009 (Cth).

Under Commonwealth law, an employee's dismissal is unfair if it is harsh, unjust or unreasonable. This is determined by issues including whether:

  • there was a valid reason related to your capacity or conduct
  • you were given a reason for your dismissal
  • you were given an opportunity to respond.

Only some employees are covered by protections from unfair dismissal under Commonwealth law.

You may not be able make an unfair dismissal complaint under Commonwealth law if you:

  • haven’t completed a 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 had a reasonable expectation your job would continue
  • are an independent contractor
  • earn more than the high-income threshold and aren’t employed under a modern award or enterprise agreement
  • were employed for a stated time, season or training and then terminated at the end of this
  • are made redundant and it is a genuine redundancy.

Making an unfair dismissal claim under Commonwealth law

What you should know about lodging an unfair dismissal application:

  • An application for unfair dismissal must be lodged with the Fair Work Commission within 21 days after the termination of your employment. The commission will only agree to extend this period in exceptional circumstances.
  • You should get legal advice before lodging an unfair dismissal application as there may be other ways to resolve your dispute.
  • If you make an unfair dismissal application, you might not be able to take other forms of legal action to resolve your dispute (e.g. general protections claim or discrimination claim).
  • Most unfair dismissal applications in the commission follow the same
  • If the commission is satisfied you were unfairly dismissed, they may order you be reinstated to your job, be paid any lost wages and/or receive continuity of service.
  • 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. 
  • You’ll have to pay a fee when you file your unfair dismissal application, but can request to have the fee waived if it would cause serious hardship.
  • In a hearing 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 legal costs of the other party. Legal costs are not ordered at the conciliation stage.

Unfair dismissal under state law

There are similar protections against unfair dismissal for state system employees in Queensland. 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 think you were unlawfully dismissed, you may be able to make a general protections claim.

Separation certificate

Why you need a separation certificate:

  • Your employer has 14 days to give you a separation certificate or fax it to Centrelink after your request.

How to get legal advice

We do not give legal advice about:

  • breach of contract or loss of commission
  • agreeing to or signing an employment contract
  • non-compete/restraint of trade clauses in a contract.
  • breach of contract matters
  • the unfair dismissal or unlawful termination of state and local government employees
  • employers or genuine independent contractors.

We may give legal advice to employees on employment matters, including individuals who have been discriminated against in the workplace.

You should get legal advice if your employment contract has been terminated and you want to make a claim for breach of contract or loss of commission.

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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.

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