Termination of employment

Termination of employment

If your employment has been terminated and you believe the grounds for the termination are unfair you may be able to apply to the Fair Work Commission for:

  • unfair dismissal

  • general protections dispute where there was unlawful adverse action – including where you were dismissed because you had a workplace right, were a trade union member or because of a personal attribute (workplace discrimination).

Sometimes it is hard to know which is best. Get legal advice.

You can only make one claim at a time about the termination of your employment.

Unfair dismissal

Unfair dismissal means that you think your dismissal was harsh, unjust or unreasonable.

How to apply

You need to act quickly. All claims of unfair dismissal must be filed with Fair Work Commission within 21 days of the termination of employment.

For information about how to make an application and how much this costs go to the Fair Work Commission website.

If the Fair Work Commission decides that you were unfairly dismissed they may order the employer to:

  • reinstate you to the same or an equivalent position
  • reinstate you and move you to a different part of the organisation
  • pay for lost wages between the date of termination and reinstatement
  • compensate you instead of getting your job back – this may happen if another employee has been hired or where it is otherwise inappropriate.

When it’s not considered unfair dismissal

Unfair dismissal does not apply if you:

  • have not completed the minimum employment period – qualifying periods are one year for a small business with fewer than 15 employees or six months for larger businesses
  • are a casual employee unless you are employed on a regular and systematic basis and you had a reasonable expectation that your job would continue
  • are a contractor
  • earn $129,300 or more you are not eligible to apply for unfair dismissal
  • were made redundant and it was a ‘genuine redundancy’.

A redundancy is not genuine if:

  • the operational requirements of the business haven’t changed and the employer still needs your job to be done by someone, or
  • the employer hasn’t followed the requirements under the applicable Award or workplace agreement about consulting with the employees, and/or their representatives, about the redundancy, or;
  • it would have been reasonable for you to be redeployed within your employer’s business or a business of an associated entity of your employer.

Breach of general protections

You can make a claim against your employer if you believe that your employer dismissed you in breach of general protections.

The law sets out some general protections that you are entitled to in your workplace. These rights include the freedom to:

  • work without discrimination or harassment – see Workplace bullying and discrimination
  • take time off work when you are sick or injured
  • belong or don’t belong to a trade union
  • be involved in trade union activities outside working hours
  • be or want to be a representative of employees
  • make a complaint or inquiry about your employment (to your employer or another body)
  • take parental leave
  • be away from work temporarily to do a voluntary emergency management activity that is reasonable in the circumstances.

Unlike unfair dismissal, it does not matter how long you were employed or the size of your employer’s business.

How to apply

You have 21 days from the termination of your employment to apply to the Fair Work Commission to make a claim for general protections dispute.

For information about how to make an application and how much this costs go to the Fair Work Commission website.

The Fair Work Commission will set up a conference with your employer to try to resolve the dispute. If the dismissal is not resolved the Fair Work Commission must issue a certificate.

You can then make an application to a court to deal with the matter. This must occur within 14 days of the certificate being issued.

Get help

Get legal help before making an unfair dismissal or general protections dispute. If you are a member of a union, you can also contact them for legal advice.