What should I know about unfair dismissal claims?

If you believe you have been unfairly dismissed from your workplace an application may be made to Fair Work Australia.

It is important to be aware that this avenue is not available to all employees as it is reliant on your personal circumstances and reason for dismissal.

The law also varies depending on whether your situation falls under South Australia’s Fair Work Act or the federal Fair Work Act.

Time Limits

Under both Fair Work Act’s an Unfair Dismissal application must be lodged within 21 days of your dismissal. 

Circumstances where a Dismissal can be Deemed Unfair

A dismissal from a job can be deemed unfair if it is considered harsh, unjust, unreasonable or not a case of genuine redundancy.

Fair Work will consider the following circumstances when deciding if a dismissal was unfair:

• whether there was a valid reason related to the employee’s capacity or conduct

• whether notice of dismissal was provided to the employee and they were given an opportunity to reply

• if the employee was prevented by their employer from bringing a support person to discussions about their unreasonable dismissal

• whether previous warnings had been issued to the employee about their workplace performance being unsatisfactory

• if the size of the business, lack of human resource management affected the procedures followed by the employer when the employee was dismissed, and

• any other factors considered relevant by the Fair Work Commission.