Understanding unfair dismissal
Unfair dismissal protections under the Fair Work Act balance employer needs to manage their workforce with employee rights to fair treatment when their employment ends.
What makes dismissal unfair
- No valid reason
- Harsh, unjust, or unreasonable
- Lack of procedural fairness
- No opportunity to respond
Key timeframes
- 21 days to lodge claim
- 6 months minimum service
- 12 months for small business
- Max 26 weeks compensation
Eligibility for unfair dismissal
Not all employees can claim unfair dismissal. To be eligible, an employee must:
Eligibility requirements
What the FWC considers
When assessing whether a dismissal was unfair, the Fair Work Commission considers multiple factors:
- Valid reason: Was there a genuine reason related to capacity or conduct?
- Notification: Was the employee told the reason for dismissal?
- Opportunity to respond: Did the employee have a chance to address concerns?
- Support person: Was the employee allowed to have a support person?
- Warnings: For performance issues, were warnings given?
- Business size: Impact of employer's size on procedures
- HR resources: Availability of HR expertise
- Any other relevant matters
21-day deadline is strict
Unfair dismissal applications must be lodged within 21 days of dismissal. The FWC rarely grants extensions. For employers, this means any claim will be lodged quickly—ensure your documentation supports the dismissal decision from the outset.
Defending an unfair dismissal claim
Good defences
- Valid reason documented
- Fair process followed
- Warnings given for performance
- Opportunity to respond given
Automatic exclusions
- Genuine redundancy
- Under minimum employment period
- Casual without regular pattern
- Fixed-term contract ending
Common mistakes leading to unfair dismissal findings
No opportunity to respond
Dismissing an employee without giving them a chance to respond to the allegations or concerns. This is a key procedural failure.
No warnings for performance
Dismissing for poor performance without prior warnings or a performance improvement process.
Disproportionate response
Dismissal is too harsh for the conduct—for example, instant dismissal for a minor first offence that doesn't constitute serious misconduct.
Key takeaways
Unfair dismissal protections require employers to have valid reasons and follow fair processes when ending employment. Documentation is essential—records of performance issues, warnings, and the opportunity given to respond can determine the outcome of a claim.
Good workforce management starts with accurate record-keeping. RosterElf tracks attendance patterns and time records that may support performance management discussions and fair dismissal processes.
