It may be unfair or unlawful to dismiss an employee without a valid reason.
Valid reasons to dismiss an employee or terminate their employment may include:
- underperformance or poor performance
- serious misconduct
- changes to operational requirements
- because the engagement was casual (and didn’t have any guarantee of ongoing work)
- because the employee didn’t pass their probationary period
- because their employment contract allows it.
It is unlawful to dismiss an employee for having or exercising a workplace right, or for a discriminatory reason.
There are 3 broad sets of laws that protect employees. They sometimes overlap, and which option applies to an employee may depend on:
- where they are working
- the reason their employer ended their employment.
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Unfair dismissal |
General protections dismissal |
Unlawful termination |
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If the dismissal is ‘harsh, unjust or unreasonable’. Most employees have access to protection from unfair dismissal laws under national and state laws. Learn more about unfair dismissal
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If the dismissal is because of a discriminatory reason, or because the employee has a workplace right, or because of other protected reasons such as union membership or sham contracting. Most employees have access to these protection under national and state laws. Learn more about general protections dismissal |
If the dismissal is for similar reasons to a general protections dismissal. These laws only apply to employees who aren’t covered by the general protections laws. Learn more about unlawful termination |
Some employees and employers may also be able to make a claim for breach of an employment contract. You may want to get legal advice if the information on this page doesn't apply to you.
There are other ways employment can come to an end that are not unfair or unlawful, such as by:
- resignation – an employee can resign at any time, although their employment contract, award or enterprise agreement may have a minimum notice period.
- redundancy – an employer makes a role redundant
- a fixed term contract ending – employment ends at the agreed end date
There are different rules about ending employment. It’s important to understand these before making acting on a decision to end employment.
About unfair dismissal
Some employees are protected from unfair dismissal by law.
Unfair has a particular legal meaning. It can mean that a dismissal is:
- harsh, unjust, unreasonable or oppressive, and
- not a genuine redundancy.
Genuine redundancy also has a particular meaning. There is more about redundancy below.
An unfair dismissal claim is a legal process
An employee who thinks they have been unfairly dismissed can start a case at a tribunal against their former employer.
Not all employees will be eligible to make an unfair dismissal claim. It can depend on things like:
- whether an employee worked somewhere for long enough
- how much they earned (high income earners generally can’t apply)
- whether the employee was technically dismissed
- whether they were an employee (these laws don’t apply to independent contractors or volunteers).
There are also differences between national laws and state laws. There is information below about who the laws apply to.
Reasons for dismissal
Dismissal for performance, capability or conduct
It can be reasonable for an employer to dismiss an employee for:
- poor performance or underperformance
- their capability (their ability to do the job)
- their conduct (or behaviour)
- breaching the employment contract.
However, an employer should take care to:
- be clear about performance and conduct expectations and standards
- give fair warnings about performance or conduct
- give the employee the opportunity to respond before the decision to terminate is made, and give them time and support (if required) to improve
- follow any relevant policies and procedures
- follow any relevant terms in the employment contract
Small businesses in the national system should also follow the Small Business Fair Dismissal Code. You can download a copy of the code from the Fair Work Ombudsman’s website.
Keep learning:
Dismissal for serious misconduct
Serious misconduct is very serious behaviour. It can include:
- causing serious risk to health and safety
- theft
- fraud
- assault
- sexual harassment
- refusing to carry out a lawful and reasonable direction that is part of the job.
It is lawful for an employer to dismiss an employee for serious misconduct without warning or notice. It is also known as ‘summary dismissal’.
Redundancy
A redundancy is when a business no longer needs an employee’s role to be done by anyone.
When an employer makes an employee’s job redundant, they may need to pay the employee severance or redundancy pay.
A dismissal cannot be unfair if it was a genuine redundancy. This can include making sure that the employer has met any consultation obligations set out in the award or enterprise agreement.
Keep learning:
Different requirements for the different legal systems
There are different laws for national system employees and state system employees.
In Australia, most employees are covered by the national system. The Fair Work Commission has information about who is covered by the national system and who is covered by the state system.
The national employment system
National system employees who think they’ve been unfairly dismissed by their employer may be able to make an unfair dismissal claim at the Fair Work Commission.
The Fair Work Commission (FWC) will decide if it was ‘unfair dismissal’ by considering whether:
- the employee was dismissed (or forced to resign)
- the dismissal was harsh, unjust or unreasonable
- the dismissal was not a genuine redundancy, and
- if the employer is a small business, the small business did not comply with the Small Business Fair Dismissal Code.
A small business is a business that employs fewer than 15 employees.
Small businesses should follow the Small Business Fair Dismissal Code if they are dismissing employees. If they follow the Code, they will not unfairly dismiss an employee.
Keep learning:
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What is unfair dismissal? — Fair Work Commission
To be eligible
To be eligible to make an unfair dismissal claim, an employee must:
- be an employee
- earn less than the high income threshold (unless the employee is covered by a modern award or enterprise agreement),
- have completed the minimum employment period.
The minimum employment period is:
- 6 months if the employer has more than 15 employees
- 12 months if the employer a small business with fewer than 15 employees.
Casual employees need to show they’ve worked on a regular and systematic basis before the dismissal and that they believed this would continue to be eligible to make a claim.
Keep learning:
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Check eligibility for unfair dismissal — Fair Work Commission
Making an unfair dismissal claim
Time limit — Eligible employees have 21 days from the date of dismissal to make an unfair dismissal claim.
Application fee — There is an application fee to make the claim. The application fee may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the FWC will send it to the employer and ask them to respond.
The FWC will schedule a conciliation to deal with the claim informally. If the case doesn’t resolve at conciliation, it may go to a formal hearing. Then the Fair Work Commission will decide whether the dismissal was unfair.
There can be financial and non-financial outcomes for making a claim. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
- Ending employment fact sheet — Fair Work Ombudsman
- The process for unfair dismissal claims — Fair Work Commission
The NSW state employment system
State and local government employees in NSW who think they’ve been unfairly dismissed by their employer may be able to make an unfair dismissal claim at the Industrial Relations Commission of NSW.
In the NSW state system, unfair dismissal means:
- the employee was dismissed (or forced to resign) or threatened to be dismissed
- the dismissal was harsh, unjust or unreasonable.
To be eligible
To be eligible to make an unfair dismissal claim, an employee must:
- be a state public sector or local government employee
- be covered by a state industrial award or enterprise agreement, or
- earn less than the NSW income threshold if they’re award free.
Employees who are not eligible to make a claim are:
- employees on a fixed term contract for less than 6 months
- employees on an employment contract for a specific task
- employees on a probation period of less than 3 months (agreed in advance)
- casual employees employed for a short period.
Making an unfair dismissal claim
Time limit — Eligible employees have 21 days from the date of dismissal to make an unfair dismissal claim.
Application fee — There is an application fee to make the claim. The application fee may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the Industrial Relations Commission of NSW (IRC NSW) will send it to the employer and ask them to respond.
The IRC NSW will schedule a conciliation to deal with the claim informally. If the case doesn’t resolve at conciliation, it may go to a formal hearing. Then the IRC NSW will decide whether the dismissal was unfair.
There can be financial and non-financial outcomes for making a claim. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
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Unfair dismissals — NSW IRC
The Queensland state employment system
State and local government employees in Queensland who think they’ve been unfairly dismissed by their employer may be able to make an application for reinstatement at the Queensland Industrial Relations Commission.
In the Queensland state system, unfair dismissal means:
- the employee was dismissed
- the dismissal was harsh, unjust or unreasonable.
To be eligible
To be eligible to make an application for reinstatement, an employee must:
- be a state public sector or local government employee
- have passed the probationary period (usually within 3 months of employment, or another time as agreed).
Employees who are on fixed term contracts or are casual employees who have worked for less than a year may not be eligible.
Making an application for reinstatement
Time limit — Eligible employees have 21 days from the date of dismissal to make an application for reinstatement.
Application fee — There is no cost to make an application.
Process and outcomes
After receiving an application from an employee, the Queensland Industrial Relations Commission (QIRC) will send it to the employer and ask them to respond.
The QIRC will schedule a conference to deal with the case informally. If the case doesn’t resolve at the conference, it may go to a formal hearing. Then the QIRC will decide whether the dismissal was unfair.
There can be financial and non-financial outcomes for making an application for reinstatement. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
- Unfair dismissal — QIRC
The Tasmanian state employment system
State public sector and local government employees in Tasmania who think they’ve been unfairly dismissed by their employer may be able to make a claim at the Tasmanian Industrial Commission.
This claim is called a ‘dispute relating to termination of employment’, or a ‘section 29(1A)’ claim.
In the Tasmanian state system, unfair termination means:
- the employee was dismissed, and
- without a valid reason.
To be eligible
To be eligible to make a claim, an employee must:
- be a state public sector or local government employee
- have been in employment that had a reasonable expectation of continuing.
Making an application
Time limit — Eligible employees have 21 days from the date of dismissal to make an application.
Application fee — There is no cost to make an application.
Process and outcomes
After receiving an application from an employee, the Tasmanian Industrial Commission (TIC) will send it to the employer and ask them to respond.
The TIC will schedule a conciliation conference to deal with the case informally. If the case doesn’t resolve at the conference, it may go to a formal hearing. Then the TIC will decide whether the dismissal was unfair.
There can be financial and non-financial outcomes for making an application for reinstatement. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
- Process and guidelines — TIC
The South Australian state employment system
State and local government and state government business enterprise employees in South Australia who think they’ve been unfairly dismissed by their employer may be able to make a claim at the South Australian Employment Tribunal.
In South Australia, unfair dismissal means:
- the employee was dismissed (or forced to resign)
- the dismissal was harsh, unjust or unreasonable.
To be eligible
To be eligible to make a claim for unfair dismissal, an employee must:
- be a state public sector, local government or state business enterprise employee
- not be employed on a fixed term contract
- not be on a probation period (usually within 3 months of employment)
- not be an apprentice
- earn less than the SA income threshold if a non-award employee.
Casual employees need to show they have worked on a regular and systematic basis for more than 6 months or have a reasonable expectation of continuing employment to be eligible.
Making an unfair dismissal claim
Time limit — Eligible employees have 21 days from the date of dismissal to make an application for reinstatement.
Application fee — There is no cost to make an application.
Process and outcomes
After receiving an application from an employee, the South Australian Employment Tribunal (SAET) will send it to the employer and ask them to respond.
The SAET will schedule a conciliation conference to deal with the case informally. If the case doesn’t resolve at the conciliation conference, it may go to a formal hearing. Then the SAET will decide whether the dismissal was unfair.
There can be financial and non-financial outcomes for making an unfair dismissal claim. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
- Unfair dismissal — SAET
The Western Australian state employment system
Employees of sole traders, partnerships or other unincorporated entities in Western Australia, and state and local government employees who think they’ve been unfairly dismissed may be able to make an unfair dismissal claim at the Western Australian Industrial Relations Commission.
In Western Australia, unfair dismissal means:
- the employee was dismissed (or forced to resign)
- the dismissal was harsh, oppressive or unfair.
To be eligible
To be eligible to make a claim for unfair dismissal, an employee must:
- be an employee in the state system (employee of an unincorporated entity, state or local government employee)
- be covered under an industrial instrument and earn less than the WA income threshold.
Making an unfair dismissal claim
Time limit — Eligible employees have 28 days from the date of dismissal to make an application for unfair dismissal.
Application fee — There is an application fee to make the claim. The application fee may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the Western Australian Industrial Relations Commission (WAIRC) will send it to the employer and ask them to respond.
The WAIRC may schedule a conciliation conference to deal with the case informally. If the case doesn’t resolve at the conciliation conference, it may go to a formal hearing. Then the WAIRC will decide whether the dismissal was unfair.
There can be financial and non-financial outcomes for making an unfair dismissal claim. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
- Unfair dismissals — WAIRC
About general protections dismissal
General protections laws protect employees from being dismissed for a protected reason.
Protected reasons includes:
- for having a workplace right — for example, for taking a break, using personal leave, asking to be paid, for saying you will take parental leave, for making a complaint
- for a discriminatory reason — for example, because of your age, sex, race, disability or other discriminatory reason
- for engaging in industrial activities — for example, for being a member of a union, for choosing not to be a union member
- so that the employer can engage in sham contracting — that is, dismissing an employee to re-hire them in the same work as an independent contractor
General protections claims are also sometimes called adverse action claims, or relief from victimisation claims.
The dismissal has to be ‘because’ of the protected reason
For the protections laws to apply, the dismissal needs to have been because of the protected reason.
For example, an employee is dismissed because they made a complaint to their manager.
The ‘because’ is important. The general protections don’t apply if the reason for the dismissal is not a protected reason.
For example, an employee who has a disability is dismissed because she stole something. The ‘because’ is a valid reason for ending employment. Her disability is not the reason she was dismissed.
Different requirements for the different legal systems
There are different general workplace protections laws for national system employees and state system employees.
In Australia, most employees are covered by the national system. The Fair Work Commission has information about who is covered by the national system and who covered by the state system.
The national employment system
Employees who have been dismissed for a reason covered by the general protections rights may be able to make a claim at the Fair Work Commission.
To be eligible to make a claim for general protections dismissal, the employee must:
- be a national system employee
- have been dismissed (or forced to resign) because of a protected reason.
The employee may be permanent, casual or on a fixed term contract.
Keep learning:
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Eligibility for general protections dismissal claims — Fair Work Commission
Making a general protections dismissal claim
Time limit — Eligible employees have 21 days from the date of dismissal to make an application for general protections dismissal.
Application fee — There is an application fee to make the claim. It may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the Fair Work Commission (FWC) will send a copy to the employer and ask them to respond.
The FWC may schedule a conference to deal with the case and try to resolve it. If the case doesn’t resolve at the conference, the FWC will issue a certificate. The employee then has the option of making a claim in the Federal Court.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
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The process for general protections dismissal — Fair Work Commission
The NSW state employment system
State system employees in NSW may be able to make a claim called ‘relief from victimisation’ at the Industrial Relations Commission of NSW.
This claim is available if employees are dismissed by their employer because of:
- union membership or industrial action
- making a complaint about their workplace entitlements or asking for their workplace entitlements
- making a complaint about workplace health and safety
- engaging in public or political activities (unless it interferes with their role)
Making a relief from victimisation claim
Time limit — Eligible employees have 21 days from the date of the victimisation happened to make an application for relief from victimisation.
Application fee — There is an application fee to make the claim. It may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the NSW Industrial Relations Commission (NSWIRC) will send it to the employer and ask them to respond.
The NSWIRC may schedule a conciliation to deal with the case and try to resolve it. If the case doesn’t resolve at the conciliation, it may go to a formal hearing. Then the NSWIRC will decide whether the victimisation happened.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
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Relief from victimisation — Industrial Relations Commission of NSW
The Queensland state employment system
State system employees in Queensland who have been dismissed for a reason covered by the general protections rights may be able to make a general protections claim at the Queensland Industrial Relations Commission.
To be eligible to make a claim the employee must:
- be an employee
- have been dismissed (or forced to resign) because of a protected reason.
The employee may be permanent, casual or on a fixed term contract.
Making a general protections claim
Time limit — Eligible employees have 21 days from the date of dismissal to make a general protections application.
Application fee — There is an application fee to make the claim. It may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the Queensland Industrial Relations Commission (QIRC) will send it to the employer and ask them to respond.
The QIRC may schedule a conciliation to deal with the case and try to resolve it. If the case doesn’t resolve at the conciliation it may go to a formal hearing. Then the QIRC will decide the case.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
The South Australian state employment system
State public sector and local government employees in South Australia who think they have been dismissed by their employer for a prohibited reason may be able to make:
- an unfair dismissal claim at the South Australian Employment Tribunal — there is information above about unfair dismissal claims
- an unlawful termination claim at the Fair Work Commission — there is information below about unlawful termination claims
The Tasmanian state employment system
State public sector and local government employees in Tasmania who think they’ve been dismissed by their employer for without a valid reason may be able to make a claim at the Tasmanian Industrial Commission.
This claim is called a ‘dispute relating to termination of employment’, or a ‘section 29(1A)’ claim.
In Tasmania, unfair termination means:
- the employee was dismissed, and
- without a valid reason.
To be eligible
To be eligible to make a claim, an employee must:
- be a state public sector or local government employee
- have been in employment that had a reasonable expectation of continuing
Making an application
Time limit — Eligible employees have 21 days from the date of dismissal to make an application.
Application fee — There is no cost to make an application.
Process and outcomes
After receiving an application from an employee, the Tasmanian Industrial Commission (TIC) will send it to the employer and ask them to respond.
The TIC will schedule a conciliation conference to deal with the case informally. If the case doesn’t resolve at the conference, it may go to a formal hearing. Then the TIC will decide whether the dismissal was made without a valid reason.
There can be financial and non-financial outcomes for making an application for reinstatement. For example, by exchanges of money, an employee getting their job back, or an employer giving the employee a reference.
Keep learning:
-
Process and guidelines — TIC
The Western Australian state employment system
Employees of sole traders, partnerships or other unincorporated entities in Western Australia, and state and local government employees who think they’ve been dismissed because of a protected reason may be able to make a claim of protection of employee rights at the Industrial Magistrates Court of Western Australia.
To be eligible
To be eligible to make a claim, an employee must:
- be an employee in the state system (employee of an unincorporated entity, state or local government employee)
- have been dismissed (experienced damaging action) because they made or can make an inquiry or complaint about an entitlement or right of employment.
Application fee
There is an application fee to make the claim. The application fee may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the application will need to be sent to the employer and so they can respond.
The Court may schedule a pre-trial conference to deal with the case informally. If the case doesn’t resolve at the pre-trial conference, it may go to a formal hearing. Then the Court will decide the case.
There can be financial and non-financial outcomes for making a claim.
Keep learning:
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Protection of employee rights — Industrial Magistrates Court of Western Australia
If you are not covered by any general protections dismissal laws you may be eligible to make an unlawful termination claim or make a discrimination claim.
About unlawful termination
Employees in both the national system and the state systems can make an unlawful termination claim but only if they cannot make a general protections dismissal claim.
Most employees in Australia are covered by the general protections laws. This means that most people cannot make an unlawful termination claim.
Learn about general protections to see if those laws cover you before reading this section.
Eligibility for making an unlawful termination claim is complicated.
If you’re still not sure, we recommend calling the Fair Work Commission or getting legal advice as soon as possible.
There are time limits for making all types of dismissal applications.
Unlawful termination means:
- that the employee was dismissed, and
- the dismissal was for an unlawful reason.
Unlawful reasons may include:
- being away from work because of illness or injury
- being a member or not being a member of a union
- participating in a union activity
- being an employee representative
- making a complaint or issuing legal proceedings against an employer to an authority
- race, colour, sex, sexual orientation, breastfeed, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, being subject to family or domestic violence, pregnancy, religion, political opinion, national extraction or social origin
- being on parental leave
- being away from work because of a voluntary emergency management (e.g. volunteering for a natural disaster).
Making an application
Time limit — Eligible employees have 21 days from the date of termination to apply for unlawful termination at the Fair Work Commission.
Application fee — There is an application fee to make the claim. The application fee may be waived for financial hardship.
Process and outcomes
After receiving an application from an employee, the Fair Work Commission (FWC) will send it to the employer and ask them to respond.
The FWC will schedule a conference to deal with the case informally. If the case doesn’t resolve at the conference, the FWC will issue a certificate. The parties can agree for the Commission to decide on the case, or the employee may apply to the court for a hearing.
Keep learning:
- Unlawful termination — Fair Work Commission
