Losing your job unexpectedly is stressful and can have serious financial consequences. If you believe you have been unfairly dismissed, you may have a claim under the Fair Work Act 2009 (Cth). As employment lawyers in Frankston, we act for both employees and employers in unfair dismissal matters.
What Is Unfair Dismissal?
A dismissal is unfair if it is harsh, unjust, or unreasonable. The Fair Work Commission considers factors including whether there was a valid reason for the dismissal, whether the employee was notified and given an opportunity to respond, whether the employer’s procedures were followed, and the size of the business and its dedicated human resources function.
Who Can Claim?
To be eligible to make an unfair dismissal claim, you must meet certain criteria:
- Minimum employment period — at least 12 months for small businesses (fewer than 15 employees) or 6 months for larger businesses.
- Covered by the national system — most private sector employees in Victoria are covered. State government employees may not be.
- High income threshold or award/agreement coverage — you must earn less than the high income threshold (currently $175,000 per year, indexed annually) or be covered by a Modern Award or enterprise agreement.
- Not a genuine redundancy — if the position is genuinely no longer required and the employer has complied with consultation obligations, the dismissal may not be unfair.
The 21-Day Time Limit
This is critical. You must lodge your unfair dismissal application with the Fair Work Commission within 21 calendar days of the dismissal taking effect. This deadline is strictly enforced, and extensions are only granted in exceptional circumstances. If you believe you have been unfairly dismissed, seek legal advice immediately.
The Process
Once an application is lodged, the Fair Work Commission will schedule a conciliation conference — an informal telephone or video conference where a conciliator helps the parties negotiate a resolution. The majority of unfair dismissal claims are resolved at conciliation, often through a negotiated financial settlement and a statement of service.
If the matter does not resolve at conciliation, it proceeds to a formal hearing before a Commissioner, where both parties present evidence and submissions. The Commissioner may order reinstatement or compensation (capped at 26 weeks’ pay).
General Protections Claims
If you were dismissed for exercising a workplace right (such as taking leave, raising a safety concern, or making a complaint), you may also have a general protections claim. Unlike unfair dismissal, general protections claims are not subject to the minimum employment period or the high income threshold — and compensation is uncapped. However, you must still lodge your application within 21 days.
Talk to an Employment Lawyer
Professional Edge Lawyers advises employees and employers on unfair dismissal and workplace disputes from our Frankston office. We serve clients across Melbourne, the Mornington Peninsula, and greater Victoria. Contact us on 1800 776 529 — especially if you are within the 21-day filing window.
