A common misconception is that an unfair dismissal claim must be taken to Fair Work Australia, however it is actually brought to The Fair Work Commission. The Commission can only initiate the process of assisting the claim after the dismissed employee lodges an ‘Unfair Dismissal Application’.

What is an Unfair Dismissal?

An unfair dismissal occurs when an employee believes they have been unfairly dismissed from employment and wishes to start an unfair dismissal remedy application. This application’s validity will be dependent on the Fair Work Commission’s finding that:

  • You the employee were dismissed; and
  • The dismissal was harsh, unjust or unreasonable; and
  • The dismissal was not a case of genuine redundancy; and
  • The dismissal was not consistent with the Small Business Fair Dismissal Code, where you -the employee – were employed by a small business.

To learn more about the Small Business Fair Dismissal Code, you can read our guide here.

Are you eligible?

In order to be eligible for an unfair dismissal claim, you must be covered by the national unfair dismissal laws and be eligible to make an application.

An added criteria of time in employment is also viewed, where an applicant must have completed the minimum employment period of:

  • One year – where the employer employs less than 15 employees; or
  • Six months – where employer employees 15 or more employees.

Additionally, if you earn more than $136,700 per year, you must fit at least one of the following:

  • An award applicable to you; or
  • An enterprise agreement that applies to you.

Making the Application

In order to start your claim, you will need to navigate to the Commission’s website or offices, where you will find an application form that will be available (Form: F2).

What the application contains

  • Contact details for you, any representative and your former employer; and
  • Employment details including the date you started work,the date you were notified of your dismissal and the date you finished work; and
  • Reasons given by your employer for your dismissal
  • Your stance on why you believe the dismissal was unfair; and
  • Your signature.

Still unsure how to make an unfair dismissal claim, contact a LawPath consultant on 1800 529 728 or use our ‘Ask a Lawyer’ function to get advice from an experienced Employment Lawyer specific to your case.

James Miotto

James Miotto

James is a Paralegal, working in our content team, which aims to provide free legal guides to facilitate public access to legal resources. With a passion for commercial law, his research focuses on small businesses, and how they can navigate convoluted legal procedures.