Unfair dismissal occurs when you are fired in a way that is harsh, unjust or unreasonable.
Exactly what counts as an unfair dismissal often depends on the circumstances. Normally, a dismissal is unfair if:
- There is no valid reason for the dismissal that relates to your conduct or capacity
- You have not been told about the reasons for dismissal or given a chance to address those reasons, including being given time and support to improve your performance
- If your employer did not allow you to bring a union representative or other support person with you while you were warned that you may be dismissed
It is also unlawful if you are dismissed for discriminatory reasons.
It is also unfair if your dismissal violates any other general workplace protections. For example, you cannot be fired for joining a union or taking part in protected industrial action.
If you believe that you might be getting dismissed unfairly you should ask your union for advice immediately.
What to do if you have been unfairly dismissed
Unfair dismissal claims are decided upon by the Fair Work Commission.
To be eligible to file a claim you must:
- Submit an application within 21 days of being dismissed
- Have been employed for at least six months before being dismissed or 12 months if you worked for a small business.
- Earn less than $153,600 per year from 1 July 2020.
Your union will have a team of experts who will help you do this.
If you work for a small business, you must have been there for more than 12 months to file for unfair dismissal.
Small businesses must follow the Small Business Fair Dismissal Code when dismissing employees.
Funding for this factsheet was provided by:
- the Victorian Government as part of the uTech project; and
- the Fair Work Ombudsman.
Please note that the information given here is general information only and is not legal advice. For further assistance, it is recommended you speak to your union.