What counts as unfair dismissal in Australia?

"Unfair" has a specific legal meaning

Losing a job can feel unfair in the everyday sense of the word almost every time. But "unfair dismissal" under the Fair Work Act 2009 is a specific legal concept, with its own eligibility rules and its own test. Understanding the difference matters, because it shapes whether — and how — you can challenge a dismissal.

Who is eligible to bring a claim?

Before the Fair Work Commission even considers whether a dismissal was unfair, you generally need to meet some threshold requirements, including:

• you were dismissed (not resigned, though "forced resignation" can sometimes count as dismissal);
• you served the "minimum employment period" — generally six months, or twelve months for a small business employer;
• your income was under the high income threshold, or you were covered by an award or enterprise agreement; and
• if your employer is a small business, they followed the Small Business Fair Dismissal Code.

The legal test: harsh, unjust or unreasonable

If you're eligible, the Commission then asks whether the dismissal was harsh, unjust or unreasonable. In making that assessment, it typically considers:

• whether there was a valid reason for the dismissal related to your capacity or conduct;
• whether you were notified of that reason;
• whether you were given an opportunity to respond before the decision was made;
• whether you were unreasonably refused a support person in discussions about the dismissal;
• whether you were warned about unsatisfactory performance before being dismissed for that reason; and
• the size of the employer's business and whether it had dedicated human resources expertise, which can affect the degree of procedural fairness expected.

Common scenarios that raise real questions

Some situations that often warrant a closer look include being dismissed without any real investigation, being sacked for a first minor issue with no prior warning, being let go shortly after raising a workplace complaint, or a "redundancy" that doesn't hold up because your role clearly still exists.

None of these automatically mean a dismissal was unfair — but they're the kinds of facts that make it worth getting advice quickly.

What a successful claim can achieve

If the Commission finds a dismissal was unfair, the primary remedy is reinstatement to your old job. Where reinstatement isn't appropriate, compensation may be ordered instead — capped by statute and calculated with reference to your remuneration and the circumstances of the dismissal.

This article is general information only and does not constitute legal advice. Every dismissal is different — speak with one of our employment lawyers about your specific circumstances.

← Back to Employment Law Explained