Legal Steps to Take After Unfair Dismissal: Protecting Employees' Rights

Two-minute summary

Being unexpectedly dismissed from your job can be distressing, especially if you believe it was unfair. In Australia, the Fair Work Act 2009 (Cth) offers protection for employees who have been dismissed in a way that is harsh, unjust, or unreasonable. However, to access remedies through the Fair Work Commission (FWC), specific eligibility criteria must be met, including acting within 21 days of termination.

Unfair dismissal typically arises when there’s no valid reason for termination, or where an employer fails to follow fair procedure, such as not notifying the employee of the reason for dismissal or denying them a chance to respond. Common scenarios include sham redundancies, retaliatory terminations, and dismissals based on discrimination or procedural flaws.

This article outlines three critical legal steps:

1. gather evidence: termination letters, contracts, performance reviews, and communications;

2. seek legal advice: a lawyer can assess your case, prepare submissions, and represent you; and

3. file your claim: submit an unfair dismissal application to the FWC within 21 days.

Legal professionals assist not only with applications and evidence, but also with conciliation – a confidential, informal process facilitated by the FWC to resolve disputes. If conciliation fails, the matter proceeds to a formal hearing. Remedies include reinstatement or compensation, the latter capped at six months’ pay.

At Farahs Legal, we provide expert guidance through every step of the unfair dismissal process. From legal strategy to FWC representation, we help clients secure just outcomes and protect their employment rights. If you believe you’ve been unfairly dismissed, don’t delay, contact our team for a consultation.

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What Constitutes Unfair Dismissal?

Under the FWA, unfair dismissal occurs when an employee is terminated in a manner that is ‘harsh, unjust, or unreasonable.’ The FWC assesses unfair dismissal claims based on several factors, including, but not limited to, the following:

1. whether there was a valid reason for the dismissal related to the employee’s conduct, capacity, or performance;

2. whether the employee was notified of the reason for dismissal;

3. whether the employee was given an opportunity to respond to allegations;

4. whether the employer refused to allow the employee to have a support person present during discussions;

5. whether the employee was previously warned about performance issues (where applicable) before dismissal; and

6. the procedural fairness exercised by the employer throughout the dismissal process.

Common Scenarios of Unfair Dismissal

Some examples of unfair dismissal cases include:

• sham redundancy where a role is eliminated but later refilled;

• termination for alleged misconduct that was not properly investigated;

• dismissal in retaliation for whistleblowing or making complaints;

• failure to follow due process in performance management;

• dismissal due to exercising workplace rights, such as joining a union;

• unfair dismissal based on discrimination, including pregnancy, illness, or political beliefs; and

• unjust termination over social media activity provided it did not breach workplace policies.

Understanding whether your case qualifies as unfair dismissal is the first step toward legal recourse.

Legal Steps to Take After Unfair Dismissal

Step 1: Gather Evidence

Before making a claim, collect all relevant documents and communications, including:

• termination letter or any communication from your employer regarding your dismissal;

• employment contract and workplace policies related to dismissal procedures;

• performance reviews or warnings, if any, leading up to the dismissal;

• correspondence (emails, messages) that discuss the termination; and

• payslips and final payout records to verify entitlements were correctly provided.

These documents will help build a strong case when filing a claim with the FWC.

Step 2: Seek Legal Advice

Employment law can be complex, and having an experienced unfair dismissal lawyer assess your case is highly beneficial. A lawyer can:

• determine whether your dismissal meets the legal threshold for unfair dismissal;

• guide you on the strength of your case and available legal remedies;

• prepare and lodge your unfair dismissal application with the FWC; and

• represent you in negotiations, conciliation, or hearings to achieve the best possible outcome.

Step 3: File an Unfair Dismissal Claim with the FWC

Unfair dismissal claims must be lodged with the FWC within 21 calendar days of your termination. This deadline is strictly enforced, and extensions are rarely granted, so prompt action is essential.

Employees should also be aware of the high-income threshold in the FWC that is reviewed and updated on the first of July every year. As of March 2025, if you earn above $175,000 per year and are not covered by a modern award or enterprise agreement, you may not be eligible for an unfair dismissal claim.

The Role of Legal Professionals in Your Case

How a Solicitor Can Assist in Your Case

Legal professionals play a crucial role in assisting unfair dismissal claimants by:

• drafting and submitting comprehensive applications to the FWC;

• negotiating settlements with employers for compensation or reinstatement;

• representing employees in conciliation conferences and hearings; and

• providing legal strategies tailored to the employee’s specific situation.

Conciliation Process in the FWC

Most unfair dismissal claims go through a conciliation process, where an FWC mediator helps both parties reach a settlement. The conciliation process is:

• confidential and aimed at finding a resolution without litigation;

• conducted via telephone or video conference to facilitate discussions;

• focused on compensation, reinstatement, or other agreed outcomes; and

• an opportunity for employees and employers to negotiate terms before proceeding to a formal hearing.

If an agreement is reached, the matter is resolved without further legal proceedings. If conciliation fails, the case moves to a formal hearing, where an FWC member will make a final decision.

Possible Outcomes of an Unfair Dismissal Claim

If the FWC determines that an unfair dismissal occurred, the two primary remedies available include:

1. reinstatement – the FWC may order the employer to reinstate the employee to their previous role with continuity of service and back pay; and

2. compensation – if reinstatement is not practical, the FWC may order monetary compensation.

   • compensation is capped at six months' wages or half of the employee’s annual earnings;

   • the FWC does not award damages for emotional distress, humiliation, or suffering; and

   • the median compensation payout typically ranges between 5 to 7 weeks’ salary.

Key Takeaways: Protecting Your Rights with Legal Support

Facing unfair dismissal can be overwhelming, but taking the right legal steps can help you achieve a just outcome. If you have been unfairly dismissed, act quickly by gathering evidence, seeking legal advice, and filing your claim within the 21-day deadline.

At Farahs Legal, our solicitors provide expert legal support for unfair dismissal claims. We offer personalised legal strategies, representation in the FWC, and strong advocacy to ensure your rights are upheld.

If you believe you’ve been unfairly dismissed, contact Farahs Legal today for a consultation.