What is (and what isn't) unfair dismissal?

What is (and what isn't) unfair dismissal?
SEEK content teamupdated on 15 January, 2024

People make unfair dismissal applications to the Fair Work Commission following a range of scenarios – they may disagree with why they were let go from their job, feel it was unlawful, or because they’ve been made redundant and believe it wasn’t for genuine reasons, says Susan Sadler, Director at Red Wagon Workplace Solutions.

“An individual may feel the way in which they were let go was not fair, or they may have resigned because they felt they couldn’t stay working for an employer as a result of something their employer did,” Sadler says.

Do you fit the criteria?

Unfair dismissal is a term often thrown about, but Sadler says there are a number of conditions that must be met for someone to be eligible to make an unfair dismissal claim.

If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws.

“Some applicants simply ignore the eligibility requirements and submit a claim anyway. The eligibility of a claim is always considered first, and the application may be dismissed on those grounds without the detail of the dismissal ever being argued,” Sadler says.

The eligibility criteria for an unfair dismissal claim are:

  • An application must be lodged within 21 days of the dismissal taking effect.
  • The employee must be covered by the National workplace relations system.
  • The applicant must have been dismissed.
  • The employee must meet eligibility criteria such as a minimum employment period.

“These criteria are the first step. From there, you’re going to need evidence and supporting documentation to justify your claim. If you don’t have evidence and your claim is based on your disagreement with what your employer did, you are unlikely to have a successful case,” she says.

General protections dismissal versus unfair dismissal claims

It’s also crucial that you file the correct type of claim. Depending on your circumstances, you may be eligible to submit either an unfair dismissal or a general protections dismissal claim. However, you can only file one claim so it’s important for you to understand which is more relevant to your situation.

The two claim types are very similar, the key difference comes down to the reason for dismissal:

  1. An unfair dismissal claim is relevant when the reason for dismissal is considered unfair, harsh or unjust
  1. A general protections claim is relevant when the reason for the dismissal (or any unfair action) was based on discrimination, unlawful grounds or following the employee exercising, or planning to exercise a workplace right. Examples may include taking sick leave, taking part in industrial action, or seeking a pay rise to meet minimum standards.

“I’ve seen claims lodged as general protections that have been unsuccessful, but had they been filed as an unfair dismissal they would have had greater chance of success and vice versa,” Sadler says.

Getting personalised advice

While Sadler says no resource can tell you whether your claim has merit, if you are likely to win, or how much compensation could be awarded to you, the Fair Work website is an excellent resource. The site features a handy online quiz to assess your eligibility to make either an unfair dismissal or general protections claim, and fact sheets to explain the process. They also provide a guide to working out if you are eligible for free legal advice.

“The Unfair Dismissal Benchbook is an up to date resource that explains the entire process and application of the Fair Work Act and provides examples on what is and isn’t a reasonable claim,” Sadler says.

At the end of the day, making an unfair dismissal or general protections claim is a decision you should not take lightly. The preparation and documentation process is detailed, and you have to re-live the details of what happened at your workplace.

“This can be stressful for the individual and their family and there is never any guarantee of the outcome,” Sadler says.

That said, if you believe that you have been unfairly and or unjustly dismissed, you are within your rights to pursue legal action and there are resources to support you in doing so. For more information visit the Fair Work Commission.

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