Unfair Dismissal Lawyers, Brisbane
Almost every unfair dismissal claim that fails, fails on a date rather than on the merits. Twenty-one days, from the day the dismissal took effect.
An unfair dismissal application must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. A dismissal is unfair if it was harsh, unjust or unreasonable, which depends on whether there was a valid reason and whether a fair process was followed. Eligibility requires a minimum employment period — six months, or twelve months for a small business employer.
The time limit comes first, because everything else depends on it
An application must be lodged with the Fair Work Commission within twenty-one days after the dismissal took effect. Not twenty-one business days, and not from the date you received a letter explaining the reasons. From the day the employment ended.
The Commission can accept a late application only where there are exceptional circumstances. That test is applied genuinely, and applications are refused for being days late by people with otherwise strong cases. If you were dismissed this week, the useful thing to do is find out now whether you are eligible — not to spend three weeks deciding whether the dismissal was fair.
It is also worth knowing that you cannot run both an unfair dismissal application and a general protections dismissal application at the same time. They cover different wrongs and offer different remedies, and choosing between them is a decision made at the outset with real consequences. Our general protections page explains the difference.
Whether you are eligible to apply
Eligibility is a threshold question and it is not intuitive. You generally need to have completed a minimum employment period — six months, or twelve months if your employer is a small business employer as the Fair Work Act defines it. You must also be covered by a modern award or enterprise agreement, or earn below the high income threshold, which is indexed each year.
Casual employment does not automatically exclude you. Service as a regular and systematic casual with a reasonable expectation of continuing employment can count towards the minimum period. Whether that applies turns on the actual pattern of work rather than the label in the contract.
The high income threshold, the small business employee count and the filing fee are set by the Fair Work Act and regulations and are indexed. They are not reproduced here — confirm the current figures with the Fair Work Commission. See sources 1 and 2.
What makes a dismissal unfair
The test is whether the dismissal was harsh, unjust or unreasonable. In practice the Commission looks at two things: whether there was a valid reason relating to your capacity or conduct, and whether the employer went about it fairly.
Process is where employers most often come unstuck, and it is why a dismissal can be unfair even where the underlying conduct occurred. The relevant questions are whether you were told what the allegation was, whether you were given a genuine chance to respond before the decision was made, whether you were allowed a support person if you asked for one, and whether the response was actually considered rather than acknowledged.
What you can actually get
The primary remedy in the Fair Work Act is reinstatement. In practice most people do not want it and most cases resolve with compensation instead. Compensation is directed at lost remuneration and is capped — broadly at the lesser of six months’ pay or half the high income threshold — and it does not include any component for hurt, distress or humiliation.
That last point manages a great many expectations. Unfair dismissal is compensation for lost earnings, not damages for how the dismissal felt. It also means the value of a claim depends heavily on how quickly you found other work, which is a reason to keep records of your job search.
Most matters resolve at or shortly after the conciliation conference, which the Commission conducts by telephone and which is informal and confidential. A large majority of applications never reach a hearing.