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Was I unfairly dismissed?

29 quoted answers, each with its source

The short answer

An employee who believes they were unfairly dismissed must apply to the Fair Work Commission within 21 days after the dismissal took effect; the dismissal usually took effect on the last day the employee had a contract of employment, which may be later than the last day at work, and if the last day of the 21-day limit is a Saturday, Sunday or public holiday the deadline changes to the next business day. Weekends and public holidays during the 21 days do not extend the deadline. To be protected, the person must have completed the minimum employment period, which is 6 months or 12 months if the employer is a small business, and a casual employee must also have worked on a regular and systematic basis and had a good reason to believe that would continue; employees over the high income threshold are protected only if a modern award covers them or an enterprise agreement applies to their employment. A person has been unfairly dismissed only if the Fair Work Commission is satisfied the person was dismissed, the dismissal was harsh, unjust or unreasonable, it was not consistent with the Small Business Fair Dismissal Code, and it was not a genuine redundancy. The Fair Work Ombudsman does not investigate unfair dismissal complaints.

Every part of this comes from the quotes below. How we write these.

What the rules actually say26

Quoted straight from the Fair Work Ombudsman, the Fair Work Act 2009 or the applicable modern award.

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Fair Work Act 2009 section 385 provides that a person has been unfairly dismissed if the FWC is satisfied the person was dismissed, the dismissal was harsh, unjust or unreasonable, it was not consistent with the Small Business Fair Dismissal Code, and it was not a case of genuine redundancy.

first-party
6 quotes from 1 source
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy.
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Fair Work Act 2009 section 382 protects a person from unfair dismissal only where the person…

  • has completed at least the minimum employment period.
  • is covered by a modern award, has an enterprise agreement applying, or earns less than the high income threshold.
first-party
6 quotes from 1 source
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
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Fair Work Act 2009 section 386(1) defines being dismissed as employment terminated on the employer's initiative, or a resignation forced by conduct or a course of conduct engaged in by the employer.

first-party
5 quotes from 1 source
A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged
or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
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Fair Work Act 2009 section 387 requires the FWC, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account whether the person was given an opportunity to respond to the valid reason related to capacity or conduct.

first-party
6 quotes from 1 source
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the
rson’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relatin
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Fair Work Act 2009 section 387(d) requires the FWC to take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at discussions relating to dismissal.

first-party
3 quotes from 1 source
any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the
notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the
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Fair Work Act 2009 section 388(2) makes a dismissal consistent with the Small Business Fair Dismissal Code when the employer was a small business employer immediately before the dismissal or when notice was given, whichever happened first, and the employer complied with the Code.

first-party
5 quotes from 1 source
A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
388 The Small Business Fair Dismissal Code (1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code. (2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if: (a) immediately before the time of the dismissal or at the time the
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if: (a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and (
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Fair Work Act 2009 section 392(5) caps compensation for unfair dismissal at the lesser of the amount worked out under section 392(6) and half the high income threshold immediately before the dismissal.

first-party
6 quotes from 1 source
The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
392 Remedy—compensation Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement. Criteria for deciding amounts (2) In determining an amount for the purposes
Compensation cap (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of: (a) the amount worked out under subsection (6); and (b) half the amount of the high income threshold immediately before the dismissal.
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Fair Work Act 2009 section 392(4) prohibits any component of an unfair dismissal compensation order being awarded for shock, distress or humiliation, or other analogous hurt, caused by the manner of the dismissal.

first-party
3 quotes from 1 source
The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
392 Remedy—compensation Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement. Criteria for deciding amounts (2) In determining an amount for the purposes
disregarded (4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
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The Fair Work Ombudsman states that an employee who thinks they have been unfairly dismissed needs to apply to the Fair Work Commission within 21 days of their dismissal.

first-party
1 quote from 1 source
If you think you’ve been unfairly dismissed, you need to apply to the Commission within 21 days of your dismissal.
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The Fair Work Ombudsman cites Fair Work Act 2009 sections 23, 382 to 388 and 394 as the source reference for its unfair dismissal page.

first-party
1 quote from 1 source
Source reference for page: Fair Work Act 2009 sections 23, 382–388, 394
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The Fair Work Ombudsman states that it does not investigate unfair dismissal complaints.

first-party
1 quote from 1 source
We don’t investigate unfair dismissal complaints.
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The Fair Work Commission states it must receive applications about unfair dismissal or general protections dismissal within 21 days after the dismissal took effect.

first-party
1 quote from 1 source
We must receive applications about unfair dismissal or general protections dismissal within 21 days after the dismissal took effect.
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The Fair Work Commission states that…

  • if the last day of the 21-day limit is a Saturday, Sunday, or public holiday, the deadline changes to the next business day.
  • the 21-day deadline is not extended because of weekends or public holidays during the 21 days.
first-party
1 quote from 1 source
If the last day of the 21-day limit is a Saturday, Sunday, or public holiday, we change the deadline to the next business day. We do not extend the deadline because of weekends or public holidays during the 21 days.
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The Fair Work Commission states that the…

  • dismissal usually took effect on the last day the employee had a contract of employment with their employer.
  • last day the employee had a contract of employment may be later than the last day the employee was at work.
first-party
1 quote from 1 source
Usually, the dismissal took effect on the last day you had a contract of employment with your employer. This may be later than the last day you were at work.
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The Fair Work Commission states that the legal definition of unfair dismissal is in section 385 of the Fair Work Act 2009.

first-party
1 quote from 1 source
The legal definition is in section 385 of the Fair Work Act 2009
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The Fair Work Commission states that…

  • unfair dismissal law protects employees who work for at least the minimum employment period before the dismissal.
  • the minimum employment period for unfair dismissal is 6 months.
  • the minimum employment period for unfair dismissal is 12 months if the employer is a small business.
first-party
1 quote from 1 source
work for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business) AND
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The Fair Work Commission states that casual employees are protected from unfair dismissal only if they…

  • worked on a regular and systematic basis before dismissal.
  • have a good reason to believe that working on a regular and systematic basis would continue.
first-party
1 quote from 1 source
(casual employees only) work on a regular and systematic basis before dismissal and have a good reason to believe this would continue.
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The Fair Work Commission states that unfair dismissal law protects employees who earn more than the high-income threshold if an…

  • award covers their employment.
  • enterprise agreement applies to their employment.
first-party
3 quotes from 1 source
The law also protects employees who earn more than the high-income threshold if:
an award covers their employment OR
an enterprise agreement applies to their employment.
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An unfair dismissal claim must be filed within 21 days from the date the dismissal took effect if the person is eligible.

1 quote from 1 source
If eligible, you have 21 days from the date your dismissal took effect to file your claim.

Disputed between sources3

Sources that do not agree, presented without picking a winner.

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Employsure states that after 21 days unfair dismissal complaints are unlikely to be reviewed by the board.

medium confidencefirst-partyvendor
2 quotes from 2 sources
This is a strict time limit under the law and late applications are generally not accepted. You can request an extension of time in exceptional circumstances; however, most (about 80%) are denied.
Employees should make their complaint within 21 days of termination. After this period, complaints are unlikely to be reviewed by the board.
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  • Regarding unfair dismissal, the Fair Work Commission states that in general protections cases it does not investigate the case or decide who is right or wrong.
  • Regarding unfair dismissal, Employsure states that the Fair Work Commission has the powers to investigate workplace complaints concerning a variety of issues.
first-partyvendor
2 quotes from 2 sources
We do not investigate your case or decide who is right or wrong.
The Commission has the powers to investigate workplace complaints concerning a variety of issues.