Learn about the steps an employee can take if they believe their termination is unfair.

On this page:

• Unfair dismissal
• Applying for unfair dismissal
• Small business employers
• Other dismissals
• Tools and resources
• Related information

Unfair dismissal

Unfair dismissal is when an employee is dismissed from their job in a way that is:

• harsh, unjust, or unreasonable
• not a genuine redundancyWhen an employee is terminated because the employer no longer requires that job to be done by anyone, except in cases of ordinary and customary turnover of staff. Other known terms: retrenchment and severance pay. , and
• if the employer is a small businessA small business employer is an employer with fewer than 15 employees at a particular time. If an employer has 15 or more employees at a particular time, they are no longer a small business employer. When counting the number of employees, employees of associated entities of the employer are included. Casual employees are not included unless engaged on a regular and systematic basis. , not consistent with the Small Business Fair Dismissal Code.

The Fair Work Commission (Commission) decides on cases of unfair dismissal and can issue an order or a decision with the outcome. When deciding if a dismissal was harsh, unjust, or unreasonable, they must consider several factors. These include:

• whether there was a valid reason for the dismissal relating to the employee's capacity or conduct
• whether the employee was given a reason for the dismissal and a chance to respond
• if the dismissal was due to underperformance, whether the employee had been warned about their performance before the dismissal.

If the Commission decides the dismissal was unfair, they may order reinstatement or compensation.

For more information, visit the Commission's website at Unfair dismissal.

Applying for unfair dismissal

We don’t investigate unfair dismissal complaints.

If you think you’ve been unfairly dismissed, you can apply to the Commission for unfair dismissal. You need to apply to the Commission within 21 days of your dismissal.

To be eligible to apply for unfair dismissal, you must:

• have worked for that employer for at least 6 months, or 12 months if you worked for a small businessA small business employer is an employer with fewer than 15 employees at a particular time. If an employer has 15 or more employees at a particular time, they are no longer a small business employer. When counting the number of employees, employees of associated entities of the employer are included. Casual employees are not included unless engaged on a regular and systematic basis.
• be covered by the national workplace relations system
• be covered by an award or enterprise agreement or earn less than the high income threshold.

If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.

Check whether you can apply for unfair dismissal with the Commission’s eligibility quiz.

Visit the Commission's website to:

• learn more about unfair dismissal
• find out how to lodge the application form
• if you’re eligible, access free legal advice about unfair dismissal.

Small business employers

A small business employer is any business with less than 15 employees.

The unfair dismissal rules apply to small business employers, but some rules apply differently. For example, employees of a small business can only apply for unfair dismissal after their first 12 months of employment.

The Small Business Fair Dismissal Code Small Business Fair Dismissal Code (the Code) applies to small business employers. If an employee is dismissed and the employer has followed the Code, then the dismissal will be considered to be fair.

To work out whether a business is a small business, count all employees employed by the business including:

• the employee and any other employees being dismissed at that time
• casual employees employed on a regular and systematic basis by the business
• employees of associated entitiesAssociated entities are businesses or other bodies that are connected to each other in some way. For example, when 1 business owns or controls the other business for the purpose of a transfer of business. Section 50AAA of the Corporations Act provides a full definition. , including those based overseas.

When checking if a business is a small business for unfair dismissal, the size of the business is counted at the earliest of the following times:

• when the employee is given their notice of termination, or
• when the employment ends (for example, where the employee was not entitled to notice of termination).

Other dismissals

Employees can also apply to the Commission if they’ve been dismissed because of:

• a reason prohibited by the general protections, or
• unlawful termination.

For more information, visit Protections at work.

Regulated workersA person who is an employee-like worker or a regulated road transport contractor. can apply to the Commission for a remedy for unfair deactivation or unfair termination. For more information, go to the Commission's website at Unfair deactivation or termination for regulated workers.

Source reference for page: Fair Work Act 2009 sections 23, 382–388, 394

Tools and resources

• Non-compliance with unfair dismissal orders fact sheet
• Small Business Fair Dismissal Code Small Business Fair Dismissal Code
• Fair Work Commission – Workplace Advice Service
• Ending employment fact sheet

Related information

• Dismissal
• Employee entitlements on a transfer of business
• Fair Work Commission – Information in your language
• Fair Work Commission – Unfair dismissal
• Fair Work Commission – General protections applications involving dismissal