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).
You can only make one claim at a time about the termination of your employment.
If you have been fired and you believe the reasons were unfair or against the law, you may be able to apply to the Fair Work Commission for:
- unfair dismissal – you think you got fired for reasons that are unfair or unreasonable.
- breach of general protections – you think you got fired for a reason that is not allowed by law.
Sometimes it is hard to know which is best. Get legal advice.
You can only make one claim at a time about being fired from your job.
Unfair dismissal means that you think your dismissal was harsh, unfair or unreasonable.
How to apply
You need to act quickly. All unfair dismissal applications need to be made to the Fair Work Commission within 21 days of you being fired.
If the Fair Work Commission decides that you were unfairly dismissed they may order the employer to:
- give you your job back, or a similar job
- give you your job back in a different part of the organisation
- pay for any wages you have lost since being fired
- pay you a sum of money if they can’t give you your job back – this may happen if someone else has been employed to do your job.
When it’s not considered unfair dismissal
Unfair dismissal does not apply if you:
- have not worked with the organisation long enough – there are minimum periods of employment for the laws to apply to you. The minimum periods are one year (for a small business with less than 15 employees) or six months (for larger businesses)
- are a casual employee, unless you are employed on a regular basis and you thought your job would continue
- are a contractor
- earn $158,500 or more
- were made redundant and it was a ‘genuine redundancy’.
A redundancy is not genuine if:
- the way the business operates hasn’t changed and your employer still needs your job to be done by someone, and
- your employer did not follow the rules properly when making you redundant or
- it would have been reasonable for your employer to find you another position at the organisation.
Breach of general protections
You may have a claim against your employer if you believe that you were fired for reasons that are against the law. There are some ‘general protections’ that all employees have. These prevent you from being treated unfairly at work and from being fired.
These general protections or rights include the freedom to:
- work without discrimination or harassment – see
- take time off work when you are sick or injured
- be a member of a trade union
- be involved in trade union activities outside working hours
- speak on behalf of other employees at your organisation
- make a complaint or enquiry about your employment (to your employer or another body)
- take parental leave.
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 when you were fired to apply to the Fair Work Commission to make a claim under general protections laws.
The Fair Work Commission will set up a conference with your employer to try to settle your claim. If your claim does not settle the Fair Work Commission must issue a certificate.
You can then apply to a court to deal with the matter. This must happen within 14 days of the certificate being issued.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 13 April 2022