Unfair Dismissal in Australia: How to Know If You Have a Case
Was your dismissal unfair? Learn the eligibility rules, 21-day deadline, high income threshold ($175,000), remedies, and how to apply to the Fair Work Commission.
What is unfair dismissal?
Under the Fair Work Act 2009, a dismissal is unfair if it is harsh, unjust, or unreasonable, and it is not a case of genuine redundancy, and it does not comply with the Small Business Fair Dismissal Code (for small business employers). The Fair Work Commission considers several factors when determining whether a dismissal is unfair: whether there was a valid reason for the dismissal related to the employee's capacity or conduct, whether the employee was notified of the reason and given an opportunity to respond, whether the employee was allowed a support person during discussions, whether the employer had previously warned the employee about unsatisfactory performance, the size of the employer's business and the impact on procedures, and any other matters the FWC considers relevant.
Eligibility: minimum employment period
Not every dismissed employee can make an unfair dismissal claim. You must have completed the minimum employment period: 6 months for employees of businesses with 15 or more employees, or 12 months for employees of small businesses (fewer than 15 employees). This period runs from the day you started with the employer. The employee count includes all employees of the business and any associated entities, including regular and systematic casuals. Casual employees can make unfair dismissal claims, but only if they were employed on a regular and systematic basis and had a reasonable expectation of continuing employment. Employees on probation can also claim unfair dismissal, provided they have passed the minimum employment period — probation periods do not override the statutory right.
High income threshold
Employees who earn above the high income threshold and are not covered by a Modern Award or enterprise agreement cannot make an unfair dismissal claim. For 2025-26, the high income threshold is $175,000 per year (indexed annually on 1 July). This figure represents total annual earnings, including wages, salary, any amounts dealt with on the employee's behalf (such as salary-sacrificed super above the SG rate), the agreed monetary value of non-monetary benefits, and any other amounts that could reasonably be regarded as earned. It does not include compulsory employer super contributions at the SG rate, or reimbursement of expenses. If you earn above this amount but are covered by an award or enterprise agreement, you can still make an unfair dismissal claim regardless of your income level.
The 21-day deadline
You must lodge an unfair dismissal application with the Fair Work Commission within 21 calendar days of the dismissal taking effect. This is a strict deadline and the FWC will only grant an extension in exceptional circumstances. The dismissal takes effect on the date the termination is effective — if you are given notice and work through it, it is the last day of the notice period; if you are paid in lieu of notice, it is the date you stop working. The application is lodged online through the FWC website. The current filing fee is $87.20 (indexed annually). The FWC may waive the fee in cases of serious financial hardship. Do not delay — if you are considering a claim, seek advice immediately. Free initial advice is available from the Fair Work Commission's Workplace Advice Service.
Remedies: reinstatement and compensation
If the Fair Work Commission finds that a dismissal was unfair, it can order two types of remedies. Reinstatement is the primary remedy — the FWC can order the employer to re-employ the person in their former position (or a comparable one) and restore their continuity of service and lost pay. In practice, reinstatement is ordered in a minority of cases because the employment relationship has usually broken down. Compensation is the alternative remedy, capped at 26 weeks' pay (based on the employee's base rate of pay at the time of dismissal, excluding penalties and overtime) or half the high income threshold ($87,500 for 2025-26), whichever is lower. The FWC considers the employee's length of service, income, efforts to mitigate loss, and any misconduct by the employee when determining the amount.
General protections vs unfair dismissal
Unfair dismissal is not the only avenue for challenging a termination. Under the general protections provisions (Part 3-1 of the Fair Work Act), it is unlawful for an employer to take adverse action against an employee because they have exercised or proposed to exercise a workplace right (such as making a complaint, taking leave, or requesting flexible arrangements), or because of a protected attribute (such as race, sex, disability, age, religion, or union membership). General protections claims have some advantages: there is no minimum employment period, no high income threshold, and compensation is not capped. However, they require proof of a prohibited reason, whereas unfair dismissal requires only that the dismissal was harsh, unjust, or unreasonable. The 21-day filing deadline applies to both. An employee cannot pursue both claims for the same dismissal.
What is not unfair dismissal?
Several types of termination are excluded from unfair dismissal claims. A genuine redundancy — where the employer no longer requires anyone to do the job, has followed consultation obligations, and could not reasonably redeploy the employee — cannot be the subject of an unfair dismissal claim. Termination for serious misconduct (theft, fraud, assault, intoxication at work, refusal of a lawful and reasonable instruction causing serious risk) allows summary dismissal without notice, though the employee can still argue the alleged misconduct did not occur or did not warrant dismissal. Completion of a fixed-term contract, seasonal employment ending, or a demotion that does not involve a significant reduction in duties or remuneration are also not considered dismissals for the purpose of unfair dismissal. Workers on visas tied to employer sponsorship face additional complexities.
Try these free tools
Official resources
General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
Related articles
Calculate your redundancy pay entitlements in Australia. NES redundancy pay ranges from 4 to 16 weeks based on years of service. Use our free calculator.
Notice Period Australia: How Much Notice Do You Have to Give?Understand notice periods in Australia. NES minimum notice ranges from 1 to 5 weeks based on service and age. Learn about employer and employee obligations.