Which employment law protects from unfair dismissal in Australia?

March 23, 2022    Employmentlawyers
Which employment law protects from unfair dismissal in Australia?

Unfair dismissal is one of the most common reasons for employment disputes. But the good part is, to support the employees and have a legally binding act to protect their rights, the Australian Government implements an employment law of Unfair dismissal. Unfair dismissal lawyers can help you know about it. 

Though, here we cover everything you need to know about unfair dismissal and the law that protects the employees from it.

What is unfair dismissal?

Unfair dismissal is when an employee is terminated from the job in an unjust, unreasonable, and harsh way.

Unfair dismissal is when the employer terminates an employee’s contract without citing a fair reason. Unfair dismissal is claimed by the employee. It also happens in the situation when the employers say they have a fair reason for employee termination but the dismissal process was handled in the wrong way.

FWC: Employment law that protects Unfair dismissal

The Fair Work Commission manages the cases of unfair dismissal under section 385 of the Fair Work Act 2009. The Act is legislation that covers the federal industrial relations system. it details the minimum workplace conditions and protects the employees along with maintaining employer obligations. This Act holds for the majority of workplaces in Australia.

The best unfair dismissal lawyers help you file an unfair dismissal application with the Fair Work Commission or FWC. The FWC is the federal workplace relations body. It is created to manage and regulate workplace matters. Once an employee applies, the FWC begins to deal with the matter. They provide a remedy to employees and also create a framework that allows the businesses and employees to deal with the situation flexibly and informally.

Eligibility for applying for Unfair Dismissal

To be eligible to make an application for unfair dismissal, the individual must be the employee of the employer. There should be a contract of employment between the two. It can be either oral or in writing.

In some cases, an individual who works as an independent contractor may be an employee of the company. In such cases, the FWC could have jurisdiction and they can deal with the unfair dismissal application.

The people who are volunteers or on vocational placement are not included in the eligibility list of making unfair dismissal applications, because they are not employees of the company.Unfair dismissal lawyers Perth will make you more aware of eligibility guidelines.

Time of unfair dismissal application

Employees are required to apply to the Commission within 21 days of the dismissal. This 21-day period starts right after the day when the employee gets the dismissal letter.

So, if you think you have been unfairly dismissed, you must contact the Commission as soon as possible, not exceeding 21 days.

Minimum employment period

To claim unfair dismissal, there is a rule of a minimum employment period. The employees need to be employed in the company for at least 6 months. If they fulfill this criterion, then only they can apply for unfair dismissal.

This period rule is different for the employees working for a small business. Small business employees need employment in the company for at least 12 months before they can apply for unfair dismissal.Sometimes the company goes through the change of business ownership, so the service with the first employer will count as the service with the second employer. Employment lawyers Perth are mindful of this, while calculating the overall employment period of the employee with the company.

Employee’s statutory rights

You must also know the employment rights. The legalities it includes are:

  • a written statement of employment
  • Itemized salary statement
  • A minimum specified notice period
  • Access to maternity, paternity, or adoption leave
  • antenatal care leave
  • parental leave
  • time for dependants
  • the right to request flexible working arrangements
  • no discrimination based on gender, race, age, disability, religion, political opinion, belief, sexual orientation, etc.

Unfair dismissal reasons

When the employer feels that they have dismissed an employee fairly, but the employee does not feel so, the latter can make a claim for unfair dismissal for the reasons:

  • The reason given to the employee was false
  • The reason given to the employee was unfair and unreasonable
  • The employee was terminated unreasonably, for example, the employer did not give a sufficient amount of time and notice about the dismissal
  • If the employer dismisses the employee for trying to exercise one of your legal employment rights.

Fair dismissal reasons

There are some fair reasons for dismissal, that include:

  • The employee showing misconduct. For example, they were found involved in the act of stealth, violence, not completing working hours, etc.
  • The statutory grounds. It means that an employee has license revoked
  • The employee is redundant
  • Other reasons like a change to the terms of employment, and the employee is not accepting the same.

Unfair dismissal consequence

If an employee thinks that he or she has been unfairly dismissed, they can seek the help of employment lawyers and go to the employment tribunal. If the court finds that the dismissal is unfair, then the employee will win with the claim. The employer will then have to pay the compensation to the employee and hire them back.

Small business dismissal rules

Small businesses may have different rules for employee dismissal.

The Small Business Fair Dismissal protects the employees against unfair dismissal. The Fair Commission deems a dismissal fair if the employer follows the Code given by them. The employer also needs to have evidence supporting the claim.

A small business is a business that houses less than 15 employees.

To find whether a business is a small business, you need to count the employees at the time of the dismissal. The employee count will include:

  • the employee
  • other employees being dismissed at that time
  • regular employees employed by the business
  • systematic casual employees at the time of the dismissal, though not all the casual employees are included in the list
  • employees of associated entities
  • the company employees based overseas.

The employment solicitors consider the size of the business the earliest of:

  • when the employee is informed about the termination of employment
  • when the employee is given the dismissal notice


Australia has the best protection rights for employees. An employer cannot dismiss an employee for a prohibited reason. If the same is done, the remedy is available in the state tribunals.

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