How do I know if I was unfairly dismissed?

You have been unfairly dismissed if:

1. You were dismissed.
2. The dismissal was harsh, unjust or unreasonable.
3. You are a 'protected employee'
4. If you were employed by a small business, that the dismissal was not consistent with the Small Business Fair Dismissal Code.
5. The dismissal was not a case of genuine redundancy.

Were you dismissed?

• You were dismissed if you were fired. "Fired" means although you had an expectation of continuing work, it was your employer's decision that you no longer work there. In some cases you may be able to show that you were forced to resign due to conduct by your employer. This is known as constructive dismissal.

When an employee chooses to resign, this is not dismissal.

Criteria for harshness

Not all dismissals are unfair, but unlike in the movies your boss can't legally fire you just because they don't like you or you made a mistake.

The dismissal may be considered unfair if:

• the dismissal is an extreme or disproportionate response to the situation - eg., you forgot to bring your keys to work and your boss fired you
• the dismissal has an extreme impact on your economic and personal situation  - eg., you were fired just as you were due to start maternity leave
• you are not guilty of whatever behaviour was the stated reason for your dismissal
• the stated reason for dismissing you has insufficient evidence 

In deciding whether a dismissal was unfair, the Fair Work Commission (FWC) will consider specific criteria for the harshness of the dismissal. The FWC will take into account:

1. Whether there was a valid reason for dismissal - valid reasons include if there was a breach of trust, consistent work underperformance, or serious misconduct. 
2. Whether you were notified of that reason.
3. Whether you were given an opportunity to respond to any reason. Generally, you should not be fired for performance issues without a significant process of performance management.
4. Whether you were offered or allowed a support person present in any discussions. A support person could be a union delegate or HSR, your union organiser, or even a trusted friend.
5. If the dismissal related to unsatisfactory performance, whether you had been warned about the performance before the dismissal.
6. How large is the business, and has the size of the business had an impact of them following appropriate procedures for dismissal.
7. Does the business have a dedicated human resource specialist.
8. Any other matters the FWC considers relevant.

Does the law protect you?

Unfair dismissal protects workers who:

• have worked for the business for at least 6 months (12 months for a small business)
• earn less than the high-income threshold OR are covered by an award or enterprise agreement.
• work on a regular basis and have reason to believe this would continue (this applies to casual employees)

Unfair dismissal protections do not apply to state public sector employees at executive and higher managerial levels or Law enforcement officers.

If you believe you may have been unfairly dismissed, it is important to contact your union or a legal service as soon as possible, because you have to submit your claim within 21 calendar days of being dismissed. Collect as much evidence of your dismissal as possible.