Unfair Dismissal

What is unfair dismissal?

Being fired in a way that is harsh, unreasonable or unjust can constitute unfair dismissal.

The Fair Work Act ensures workers can challenge unfair treatment, and helps protect you from bosses who would otherwise sack their workers unfairly.

They also play in important role in creating safe and fair workplaces.

Need more information? Contact your AWU delegate, or join the union!

Am I protected?  

Most permanent workers are legally protected from being unfairly dismissed after a qualifying period of six months.

Casuals are also protected, as long as they have been with an employer for at least six months, on a regular and systematic basis, and reasonably expected to continue to be employed on that basis.

If you work for a small business, one with fewer than 15 employees, you need to have worked there 12 months.

But workers earning more than $158,500 annually aren’t protected. (That figure doesn’t include bonuses or commissions, unless the employer has guaranteed they will be paid.)

Not sure if you qualify? Contact your AWU delegate, or join the union!

What’s a “dismissal”?

Dismissal means being fired – with or without warning – for your behaviour, for not doing your job to the level required, or when your position is being made redundant.

In some cases, if the boss’s behaviour forces you to resign, that may also be classed as a dismissal.

You are not being “dismissed” if you are not offered a new contract when the old one ends, the specified task you were employed to complete ends, or your seasonal job ends.

Changes to permanent contracts should also happen through negotiation and consent. Your boss can’t just decide to cut your pay or hours without consultation.

So know your rights! Been sacked, or threatened with losing your job? Contact your AWU delegate, or join the union!

Should I get notice of termination?

Permanent workers must be given notice of termination if their job is terminated. If they are not, they must be paid out their termination notice at their ordinary rate of pay.

Notice of termination does not apply to casuals, probationary, seasonal or fixed-term workers, or to those earning more than $158,500 a year.

Lost your job, without notice or with a payout? Contact your AWU delegate, or join the union!


This happens where the employer no longer requires that your job be done by anyone, or goes broke.

Redundancies must be genuine. When they are, you can’t claim for unfair dismissal or unlawful termination.

If you are made redundant you should get severance pay, and be paid out for the relevant notice period and any accrued leave, unless your boss employed fewer than 15 workers in permanent or ongoing regular work.

Facing redundancy? Contact your AWU delegate, or join the union!

I just got a warning!

Official warnings can be verbal or written. If verbal, your boss must make it very clear it is an official warning.

And there is no such as thing as a “three-warning” rule. Only one is legally mandatory.

Warnings should only be given in good faith, not to intimidate or bully you, or be motivated by any form of discrimination against you.

A warning should only be given to put you on notice that your performance requires improvement, and you must be given a reasonable chance to make any changes the boss demands.

An official work warning can be intimidating, so don’t suffer in silence. Contact your AWU delegate, or join the union!

Small business

Small Business Fair Dismissal Code applies to businesses employing fewer than 15 people, casuals who work for there on a “regular or systematic basis”, and the person being dismissed.

A small business sack you without notice or warning only if they believe your actions constitute “serious misconduct”.

If there is no serious misconduct, they must have warned you that you were at risk of dismissal and tell you why, based on a problem to do with your behaviour or conduct, or ability to do their job.

You must also get a chance to fix the problem. This may involve extra training or making sure you know what the boss expects of you.

Whatever your situation, know your rights! Contact your AWU delegate, or join the union!

Discrimination and Unlawful Termination

It is illegal to be discriminated against or sacked on the basis of race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

It also constitutes unlawful termination if you are sacked because of a temporary absence from work due to illness or injury.And you can’t be sacked for:

  • being in a union; participating in union activities outside work hours (or with the employer’s consent, during work hours);
  • being an employee’s representative;
  • taking parental or community leave;
  • or for making a complaint or participating in proceedings against your employer.

So don’t be bullied! Contact your AWU delegate, or join the union!

Lodging a claim

Unfair dismissal claims must be lodged with Fair Work Australia within 21 days of the dismissal.

Claims may only be heard after the 21-day period has lapsed in highly exceptional circumstances.

Fair Work may order your employer to pay compensation, but there are tight rules about how much they may be ordered to pay.

You can only receive compensation for lost income, and you won’t always receive that, even if the dismissal was unfair.

Fair Work prefers trying to get you your job back.

If that happens you employer must follow some rules, including restoring your job to what it was before they sacked you. This means the same pay, benefits and working conditions.

It does not have to be the same position, but the terms and conditions can’t be worse than your old job.

The AWU has a great record protecting workers and getting their jobs back when the worst happens. So know your rights, contact your AWU delegate, or join the union!

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