Losing your job unfairly is a serious legal matter — you have 21 days to act.

To access unfair dismissal under the Fair Work Act 2009, you must have completed the minimum employment period — 6 months for employees of larger employers (15 or more employees), or 12 months for small business employers (fewer than 15 employees). You must also be covered by the national workplace relations system, which covers most private sector employees. Casual employees are eligible if they were employed on a regular and systematic basis. Independent contractors, volunteers, and certain state public sector employees are generally not covered by the national Fair Work system.

Under section 394 of the Fair Work Act 2009, an unfair dismissal application must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect. If you miss the deadline, you can apply for an extension, but you must demonstrate exceptional circumstances — such as a serious illness, a misleading statement by the employer, or being unaware of the dismissal date. Extensions are granted sparingly, so it is critical to act immediately after your employment ends.

Under section 387 of the Fair Work Act, the Fair Work Commission considers multiple factors: whether there was a valid reason related to capacity or conduct, whether the employee was notified of the reason, whether they were given a chance to respond, whether they could have a support person present, and whether warnings were given for performance issues. A dismissal can be unfair if it was harsh (the penalty was disproportionate to the conduct), unjust (the employee was innocent), or unreasonable (the decision was not soundly based on the evidence). All three situations are captured under the unfair dismissal framework.

Constructive dismissal occurs when an employer deliberately behaves in a way intended to bring the employment relationship to an end, or breaches the contract so seriously that the employee has no real choice but to resign. To establish it, you generally need to show that the employer's conduct (such as demotion, harassment, failure to pay wages, or fundamentally changing your duties) made your employment untenable, and that you resigned in direct response to that conduct rather than voluntarily. Strong documentary evidence — emails, payslips, HR correspondence — and a clear timeline of events are essential.

The primary remedies are reinstatement to your former position (the preferred remedy under the Act) and compensation. Compensation is capped at the lesser of 26 weeks' pay or half the annual high-income threshold (currently around $88,000). The Fair Work Commission reduces compensation by any mitigation earnings, contributory conduct by the employee, and the viability of the employer. Most cases resolve through conciliation — often with a negotiated payment, a reference, or reinstatement — without reaching a formal hearing.

General protections under Part 3-1 of the Fair Work Act prohibit taking adverse action against an employee for exercising a workplace right (such as making a complaint, taking leave, or engaging in union activity). Unlike unfair dismissal, there is no minimum employment period, no cap on compensation, and the employer bears the reverse onus — they must prove the dismissal was not for a prohibited reason. However, general protections claims for dismissal must be lodged within 21 days. A lawyer can advise whether your situation supports one or both types of claim.