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Unfair dismissal and general protections dismissal

Frequently Asked Questions about unfair dismissal and general protections dismissal.

  • Key issues

    Key issues

    • Are you employed by a NSW government agency, local council, or NSW state government owned corporation?
    • Does your employer have a registered agreement approved by and registered with the Fair Work Commission?
    • Are you covered by an award, agreement or other industrial instrument?
    • Is your union involved?
    • Have you been dismissed?
    • Why were you dismissed?
    • When were you dismissed?
    • Has it been more than 21 days since you were dismissed? 
    • Was the dismissal harsh, unjust or unreasonable?
    • Was there a breach of rights under​ the Fair Work Act 2009 (Cth)?
    • Have you applied to the Fair Work Commission?

What does dismiss​​ed mean?

Dismissed means you were fired or sacked from your job, or your employment was terminated. If you have been in a situation where your empl​oyer left you with no other option but to resign, then this might also be recognised as a form of dismissal. This may be called 'constructive dismissal'. ​​

Should I have been given a warnin​g before being dismissed?

If you were dismissed because of unsatisfactory work performance, your employer should have given you a warning before they dismissed you. An exception to this is if you engaged in serious misconduct. In this situation your employer does not have to give you a warning.

If your employer gives you a warning, it can be verbal or in writing.

If you did not get a warning before being dismissed for performance reasons (not including serious misconduct), you should get legal advice.

Am I an employee o​r a contr​actor?

​Whether you are an employee or an independent contractor is not always easy to work out and depends on a number of things. If your contract says you are a contractor, this does not necessarily mean that you are.

Someone who is an independent contractor might:

  • supply their own tools or equipment
  • advertise their services to others
  • do work when and how they want
  • have their own workplace
  • provide invoices after finishing tasks or jobs
  • contract the work out to someone else
  • spend some of their income on their own business expenses.  

Someone who is an employee might:

  • be paid a regular wage or salary
  • have tax taken out of their pay by their employer
  • have paid holidays and sick leave
  • be told what hours they have to work, and where they have to work
  • be supplied with tools and equipment
  • fill out timesheets
  • have superannuation contributions paid by their employer
  • be covered for workers compensation by their employer.

There are also other factors that can help to determine whether you are an employee or contractor. It is important not to look at just one factor to determine whether you are an employee or a contractor. You need to consider the whole situation.

For more information, see Independent contractors on the Fair Work Ombudsman website.

The difference between an employee and a contractor is an important one. If you are a contractor you can't make an unfair dismissal claim, however you might be able to claim breach of contract. If you are unsure about whether you are an employee or contractor, you should get legal advice.

What can I do if I have been dismis​sed from work?

If you have been dismissed from work, you may be able to:

  • ​make an unfair dismissal claim - you would need to show that you are eligible to make a claim, and that your dismissal was harsh, unjust or unreasonable. You have 21 days from the date you were dismissed to apply for unfair dismissal at the Fair Work Commission (the Commission).
  • make a general protections dismissal claim (for adverse action) - you would need to show that your employer has adversely affected you by dismissing you for trying to exercise one of your general protection rights under the Fair Work Act 2009 (Cth). You have 21 days from the date you were dismissed to apply for general protections dismissal at the Commission.
  • make a discrimination claim - you would need to show that the reason for your dismissal was based on unlawful discrimination. For more information, see Discrimination - Frequently Asked Questions.

There are often many options that you can take if you are dismissed from work. You should get legal advice so you can work out which option is best for you.

Also, when you are dismissed you should usually be given notice (unless you were dismissed for serious misconduct) and paid all of your outstanding leave entitlements. If there is a dispute about your entitlements, you can contact the Fair Work Ombudsman.

For more information, see Recovering unpaid wages and entitlements - Frequently Asked Questions.

What is serious miscond​uct?

Serious misconduct is wilful or deliberate behaviour that causes your employer to lose trust and confidence in you as an employee. Examples of serious misconduct can include:

  • theft, fraud, or assault in the course of employment
  • sexual harassment
  • being intoxicated at work
  • refusing to carry out a lawful and reasonable instruction that is consistent with your contract
  • other behaviour that causes imminent and serious risk to the health or safety of a person at work.

If your behaviour constitutes serious misconduct, your employer can dismiss you on the spot, without notice and without payment in lieu of notice. This is called summary dismissal.

Can I apply for unfair dismissal and general protections dismissal at the same tim​e?

If you have been dismissed, you can only bring one claim at a time. You may be able to bring a different claim if you withdraw your first claim or the Fair Work Commission did not have jurisdiction to deal with it. The usual time limits will apply, unless you get permission from the Commission to apply out of time.

If you want to make more than one type of claim, you should get legal advice.

How long do I have t​​o apply for unfair dismissal or general protections dismissal?

You have 21 days from the date you were dismissed to make an unfair dismissal application or general protections dismissal application to the Fair Work Commission (the Commission). In some cases, the Commission might accept a late application, but it depends on the circumstances.

The date of dismissal is usually your last day of attending work or when you are first told you no longer have a job, whichever is later.

If it has been more than 21 days since you were dismissed, you should get urgent legal advice.

Can I make an application if I am out of time?

You have 21 days from the date you were dismissed to make an unfair dismissal or general protections dismissal application to the Fair Work Commission (the Commission).

You may be able to make a claim if you are out of time, but it depends on your circumstances. The Commission will consider:

  • the reasons for the delay
  • whether you disputed the dismissal
  • whether any prejudice would be caused to your employer by allowing the late application
  • the merits of your application
  • whether it is fair to allow your late claim, and
  • whether you would suffer special hardship, if the Commission did not allow you to apply out of time.

If it has been more than 21 days since you were dismissed, you should get urgent legal advice.

What if my employer ​has demoted me?

If your employer has demoted you, you might have grounds to apply for unfair dismissal or general protections dismissal, but it depends on the circumstances of your demotion.

You should get legal advice about your situation.

What is unfair dism​issal?

Unfair dismissal is when a dismissal is:

  • considered harsh, unjust or unreasonable
  • not consistent with the Small Business Fair Dismissal Code
  • not a genuine redundancy.  

For more information, see Unfair dismissal in the My problem is about section of our website.

Can I apply for unfair dism​issal?

You may be eligible to apply for unfair dismissal if you:

  • are covered by the national​ laws
  • are an employee and not a contractor, and 
  • have worked for your employer for at least 12 months if you work for a small business, or six months if you work for a business that is not a small b​usiness.

You are not eligible to apply for unfair dismissal if you:

  • are a casual employee, unless you worked on a regular and systematic basis for at least six months for a large business or 12 months for a small business, and had a reasonable expectation of continuing work
  • were employed on a contract for a fixed term or for a specific task that has finished
  • earn more than $175,000 pa (as at 1 July 2024) and are not covered by an award or industrial agreement. This amount includes wages and salary and amounts that can be determined in advance, but does not include discretionary bonuses and compulsory superannuation payments.

For more information, see Can you apply? in the My problem is about section of our website.

If you want to apply for unfair dismissal, you should get legal advice. You may also have other options, such as applying for general protections dismissal or making a discrimination claim.

Can I apply for unfair dismiss​al if I worked for a small business?

If you worked for a small business, you may be eligible to apply for unfair dismissal if:

  • you were an employee and not a contractor or hired through an agency
  • worked for a minimum period of 12 months for your employer
  • your employer did not follow the procedures set out in the Small Business Fair Dismissal Code.

For more information, see What is unfair dismissal? on the My problem is about section of our website.

​Do I work for a ​​small business em​ployer?

A small business employer is an employer that has less than 15 employees. The number of employees is determined by a head count of full time and part time employees as well as any casual employees that work on a regular and systematic basis. You need to include yourself in working out the number of employees.

For more information, see What is unfair dismissal? on the My problem is about section of our website.

If your employer has less than 15 employees, but they have more than one business or other companies that are associated with them, you should get legal advice about whether your employer is still considered a small business employer.

Can I apply for unfair dismissal if I am employed through an agency?​​

There are strict rules about who is eligible to apply for unfair dismissal.

You are generally not considered an employee of an organisation if you have been sent there by a labour hire agency. This means that you may not be able to apply for unfair dismissal against the organisation where you work.

In some circumstances, you may be able to apply for unfair dismissal against the labour hire agency, however this area of the law is very complicated and you will need to get legal advice. Other options might also apply depending on the circumstances of your dismissal.

Do unfair dismissal laws apply to ​me if I work for a franchise?

In some circumstances unfair dismissal laws may apply if you work for a franchise.

Franchises are usually owned by separate and unrelated companies (or individuals), and pay for the right to use a particular trademark, design or intellectual property of another company. However, sometimes one company (or individual) can own more than one franchise or business. In those cases, all employees working for all franchises and businesses owned by that company (or individual) can be added together to work out the total number of employees for unfair dismissal purposes.

You should get legal advice about your situation.

Do unfair dismissal laws appl​y if I work for a trust?

In some circumstances unfair dismissal laws may apply if you work for a trust. You should get legal advice about your situation.

Can I ap​ply for unfair dismissal if I am a volunteer?

You are not eligible to apply for unfair dismissal if you were dismissed from volunteer work.

Can I apply for unfair dismiss​al if I was on probation?

Regardless of the length of your probationary period, you can't apply for unfair dismissal if you were employed for:

  • less than 12 months, if you worked for a small business, or
  • less than six months, if you worked for an employer that is not a small business.

If your probationary period was for more than six months, you should get legal advice if:

  • your employer dismissed you during your probation period, and
  • you had worked for at least six months.

If you want to apply for unfair dismissal, you should get legal advice. You may also have other options, such as applying for general protections dismissal or making a discrimination claim.

Can I apply for unfair dismissal i​​f I am a casual?

If you worked for a small business, you are only eligible to apply for unfair dismissal as a casual if:

  • you were working on a regular and systematic basis for the same employer for more than 12 months
  • you had a reasonable expectation of ongoing work, and
  • your employer did not follow the procedures set out in the Small Business Fair Dismissal Code.

If you worked for a business that is not a small business, you are only able to claim unfair dismissal as a casual worker if you:

  • had been working on a regular and systematic basis for the same employer for more than six months, and
  • had a reasonable expectation of ongoing work.

If you want to apply for unfair dismissal, you should get legal advice. You may also have other options, such as applying for general protections dismissal or making a discrimination claim.

Can I apply for unfair di​smissal if I work for a company that is based overseas?

If you work for an overseas company that operated in Australia, you will need to get legal advice about whether you are eligible to apply for unfair dismissal. This is a complicated matter and a lawyer would need to know in detail the structure of the company to advise you on your options.

Can I c​laim unfair dismissal if I was paid cash in hand?             

It is illegal to work for cash without paying tax. You can still apply for unfair dismissal, but you should be aware that the Australian Taxation Office can take action against both you and the employer if income tax has not been paid. Criminal charges may be laid and/or you may have to pay back tax and penalties.

You should get legal advice about your situation.

Can it be unfair dismissa​l if my employer forced me to resign?

You may have been dismissed, even though you resigned, if you can show that you did not resign voluntarily but were forced to resign because of pressure from your employer. Depending on your circumstances, you might be able to apply for unfair dismissal.

You should get legal advice about your situation.​

Can I apply for unfair dismissal if I was made redundant?

A genuine redundancy happens when your employer no longer needs your job to be done by anyone and your employer has followed any obligations they had in a modern award or enterprise agreement.

If you can prove that your redundancy was not genuine, you may be able to apply for unfair dismissal.

You should get legal advice if you are in this situation.

What form do I use to ap​ply for unfair dismissal?

If you are eligible to apply for unfair dismissal, you will need to complete an application form. You will need to pay the filing fee and file your form with the Fair Work Commission (the Commission).

You have 21 days from the date of your dismissal to apply for unfair dismissal at the Commission.

For more information, see Step by step guide - Making an unfair dismissal application on the My problem is about section of our website.

Can I make an urgent application if it is nearly more than 21 days since I was dismissed​?

If the time limit is nearly up since you were dismissed, you must act quickly. In this situation, you can make your application over the telephone or online. 

For more information, see:

What can I ask for in my​ claim?

In your unfair dismissal claim you can ask for:

  • your job back, or a similar job (reinstatement), and/or
  • compensation (money) for lost wages instead of reinstatement.

You usually can’t ask for back pay for unpaid wages or entitlements but you can negotiate about this during the unfair dismissal claim process.

What is the maximum amount of co​mpensation I can claim?

The maximum amount of compensation (money) that you can claim in an unfair dismissal claim is generally 26 weeks wages.

You can negotiate an amount of compensation with your employer at conciliation, which will occur after you file your application with the Fair Work Commission. You may want to get legal advice about how much compensation you should ask for, taking into account your length of service with your employer, the circumstances of the dismissal and other factors. 

If conciliation is unsuccessful and your case goes to a hearing and the Commissioner decides to award you compensation rather than reinstatement, the Commissioner will decide the amount of compensation that you will be awarded.

If you want to claim compensation, you should get legal advice about the maximum amount you may be able to claim. 

Can compensation cover pain and ​suffering?

If your unfair dismissal claim is successful and you receive compensation (money), you will only be compensated for actual losses, for example, lost wages. You can't be compensated for shock, distress, humiliation or other similar hurt in an unfair dismissal claim.

If my employer owes me money, can this be included in my unfair dismissal claim?​

If you claim for compensation (money) for unfair dismissal, it is separate from any claim you might have against your employer for money they owe you, for example, unpaid wages and entitlements. You can claim these amounts separately. 

It may be possible to negotiate these amounts with your employer when you attend conciliation for your unfair dismissal claim.

For more information, see Recovering unpaid wages and entitlements – Frequently Asked Questions.

​If I get anoth​er job,​ will this aff​​ect how much I can get in compensation?

If your unfair dismissal claim is successful, and the Fair Work Commission is deciding on compensation (money), it can take into account:

  • whether you have found another job
  • how long it took you to find another job
  • whether you have deliberately delayed looking for another job.

What happens after I appl​y for unfair dismissal?

After you file your application with the Fair Work Commission (the Commission), your employer will be sent a copy of your application and be asked to respond to it, including any objection to the Commission having power to hear the application (called jurisdictional objections). Your employer should send you a copy of their response.

If your employer does not raise any jurisdictional objections, the Commission will then send you both a Notice of Listing. This is a letter that will include a date and time when you have to attend conciliation.

If your employer raises jurisdictional objections, you should get legal advice before your hearing date. This is because a jurisdictional hearing will be held for your case, with the Commission deciding whether it has the power to hear your application.

For more information, see Step by step guide - Preparing for conciliation on the My problem is about section of our website.

What is conc​iliation?

Conciliation is when you and your employer will talk about the issues with a third person (a conciliator) to see if the dispute can be resolved. 

For more information, see:

What if conciliation is u​nsuccessful?

If you and your employer can't reach an agreement at conciliation, your case will go to a hearing. A hearing will take place on a different day to the conciliation. At the hearing, you and your employer will both get to present your case to a member of the Fair Work Commission who will decide your case. 

For more information, see:

Do I need a lawyer to repre​sent me?

The Fair Work Commission (the Commission) will usually allow you to have a support person at conciliation. This could be a family member or friend or a lawyer.

If your case goes to a hearing, you can apply to the Commission for permission to have a lawyer represent you. The Commission will only give you permission if:

  • it will enable your matter to be dealt with more efficiently taking into account how complicated your matter is
  • it will be unfair not to allow you to be represented

  • you can show that you are not capable of representing yourself.

Will I have to pay costs?

Generally, each party will have to pay their own legal costs in an unfair dismissal case, whether they win or lose. However, the Fair Work Commission may order costs against an unsuccessful party in some cases, for example, if you have made a frivolous or vexatious claim, or if one party acted unreasonably by failing to discontinue or settle the matter.

Can I appeal the decision of the Fair Work Commission?

If you are unhappy with the decision of the Fair Work Commission (the Commission), you may be able to apply for permission to appeal within 21 days of the date of the decision.

If it has been more than 21 days since the decision was made, you may still be able to appeal. However, you will need to ask for an extension of time and explain why you did not file your appeal within the time limit.

Before you appeal, you should get legal advice. If the Commission thinks that your appeal was clearly weak and you had no chance of winning, it can order you to pay the other party’s legal costs.

For more information, see Appeals - Unfair dismissal on the My problem is about section of our website.

What are general p​rotections?

General protections are the legal rights a national system employee has under the Fair Work Act 2009 (Cth). As a national system employee, you have the right to:

  • make enquiries or complaints about your workplace conditions
  • have, use or propose to use any workplace right
  • full benefits of your award or industrial agreement or an industrial law
  • be part of any process or proceedings under a workplace law or agreement
  • be a member or office holder of a union or not to be a member or office holder of a union
  • protection against unlawful discrimination
  • take parental leave
  • be absent for voluntary emergency duties
  • be temporarily absent from work for three months or less (within the past 12 months and not including paid sick leave) due to illness or injury (in certain circumstances)
  • be appointed and perform the functions of a Work, Health and Safety Officer or Harassment Officer
  • be protected from sham arrangements, such as whether you are told you are an independent contractor when you are an employee
  • take paid family and domestic violence leave.

For more information, see General protections dismissal on the My problem is about section of our website.

​What if my general protectio​ns rights are breached?

If your general protection rights are breached by your employer, your options will depend on whether you are still employed or whether you have been dismissed.

If you have been dismissed, you can make a general protections dismissal application to the Fair Work Commission.

Can I make a general protection​s dismissal application?

You can make a general protections dismissal application if:

  • you were dismissed
  • it has been less than 21 days since you were dismissed (although some late applications may be accepted), and
  • your general protection rights were breached by your employer.

For more information, see Can you apply? on General protections dismissal on the My problem is about section of our website.

You may also have other options, such as an unfair dismissal application or a discrimination claim. You should get legal advice about your situation.

What if I was not dismiss​ed?

If you have not been dismissed but you still believe your general protection rights were breached, you may be able to apply for general protections, or make a discrimination claim.

For more information, see:

What form do I use to ap​​ply for general protections dismissal?

To apply to the Fair Work Commission, you need to fill in a Form F8 - General ​protections application involving dismissa​l and pay the fee when filing your form with the Commission.

For a copy of the form, see General protections application involving dismissal on the Fair Work Commission website.  

What happens after I ​apply?

After you file your application with the Fair Work Commission, it will serve your employer with a copy. Your employer must respond to your application by filling in a Form F8A - Response to General Prote​ctions ​Application and attaching any supporting documents. Your employer must se​rve you with these documents.

For more information, see Response to general protections application on the Fair Work Commission website.

What is conciliation?

After your employer has responded to your application, the Fair Work Commission will arrange a conference between you and your employer. A conference is a type of mediation or conciliation. It is a process that allows you and your employer to talk about the issues to see if you can resolve the dispute together. 

For more information, see The process for general protections dismissal on the Fair Work Commission website.

What if we reached an agreement​ at conciliation?

If you and your employer reached an agreement about your dispute at conciliation, you should put your agreement in writing. 

For more information, see Step by step guide - After conciliation on the My problem is about section of our website.

What if conciliation is unsuc​cessful?

If you and your employer cannot reach an agreement at conciliation, the Fair Work Commission (the Commission) must issue you with a certificate that states that your complaint has not been resolved. You will then have up to 14 days to apply to:

  • the Commission to deal with the dispute by arbitration, or
  • the Fair Work Division of either the Federal Circuit and Family Court of Australia or Federal Court of Australia.

For more information, see Step by step guide - After conciliation on the My problem is about section of our website.

The Commission can tell you that your proposed arbitration or general protections court application does not have a reasonable chance of success. If this happens you should not take your case further without getting legal advice first. There may be a costs order made against you if you continue a general protections dismissal case in court or arbitration that does not have a reasonable chance of success.

How do I apply to the Fair Work Commission to deal with the dispute by arbitration?

​​Arbitration is a less formal and complicated way of determining disputes. Y​ou can only apply to the Fair Work Commission (the Commission) for arbitration if:

  • both you and your employer agree to have your case go to arbitration, and
  • conciliation was unsuccessful.

​​​To apply you will need to give notice to the Commission that both you and the employer agree to the arbitration taking place. You can complete Form F8B - Notifica​tion of agreem​ent for consent arbitration of a general protections dispute​. You or your employer must give this notice within 14 days of getting a certificate from the Commission that says the dispute is not likely be resolved after conciliation.

For more information about this process, see:

What can the Fair Work Commission ​do at arbitration?

The Fair Work Commission will conduct the arbitration. It can make orders to resolve the dispute including orders to:

  • put you back into your job
  • pay you compensation (money)
  • pay you for lost wages
  • keep you in your job if you have not left it, or
  • make sure your time with the employer counts as continuous service​.

For more information, see Step by step guide - Presenting your case at arbitration on the My problem is about section of our website.

What if I am not happy with the de​cision of the Fair Work Commission at arbitration?

You can only appeal an arbitration decision if the Fair Work Commission (the Commission) considers it is in the public interest to allow the appeal.

If the reason for your appeal is that the Commission was mistaken about something that happened, you can only appeal the decision if that error was significant.

Before you appeal an arbitration decision of the Commission, you should get legal advice.

Do I need a lawyer to repres​ent me at the Commission?

No. However, you can apply to the Fair Work Commission (the Commission) for permission to have a lawyer represent you. The Commission will only give permission if:

  • it will enable your matter to be dealt with more efficiently taking into account how complicated your matter is
  • it will be unfair not to allow you to be represented, or
  • you can show that you are not capable of representing yourself.

Can I appeal the decision of the Fair Work Commission?

If you are unhappy with the decision of the Fair Work Commission (the Commission), you may be able to apply for (leave) permission to appeal within 21 days of the date of the decision.

If it has been more than 21 days since the decision was made, you may still be able to appeal. However, you will need to ask for an extension of time and explain why you did not file your appeal within the time limit.

Before you appeal, you should get legal advice. If the Commission thinks that your appeal was clearly weak and you had no chance of winning, it can order you to pay the other party’s legal costs.

For more information, see Appeals on the My problem is about section of our website.

Can I apply to the Federal Circuit and Family ​Court of Australia?

If you made a general protections dismissal application to Fair Work Commission but you and your employer could not settle the case, you may be able to apply to the Federal Circuit and Family Court of Australia. The Court can make orders about compensation and reinstatement, as well as other orders, for example fining your employer.

For more information, see Going to the Federal Circuit and Family Court on the My problem is about section of our website.

​Before applying to the Federal Circuit and Family Court of Australia, you should get legal advice.

Can I appeal the decision of the Federal Circuit and Family Court of Australia?

If you are unhappy with the decision of the Court, you may be able to appeal to the Federal Court of Australia within 28 days.

Before you appeal, you should get legal advice.

For more information, see Appeals on the My problem is about section of our website.

Last updated: July 2024