Unfair Dismissal – Eligibility and Making an Application

Unfair Dismissal – Eligibility and Making an Application



Unfair Dismissal – An Overview

An individual will be protected from unfair dismissal if they have:

  • completed the minimum period of employment; and
  • earn less than the high-income threshold or fall under a modern award/enterprise agreement concerning their employment.

As of 2022, the high-income threshold is just over $150,000. This threshold is adjusted annually and you can confirm the current amount in the FWC’s Unfair Dismissals Benchbook.

An employee will not, however, be eligible to make an unfair dismissal claim where the dismissal was a genuine redundancy or their employment falls under the Small Business definition. Particularly in Queensland, public sector/local government employees will not fall under the jurisdiction of the national system and therefore cannot bring a claim for unfair dismissal.

There are strict time limits for making an application for unfair dismissal. Usually, an individual must lodge an application for unfair dismissal within twenty-one (21) days of the dismissal taking effect. The application must be made to the Fair Work Commission (FWC) and may only be accepted out of time in exceptional circumstances.


Employee or Contractor?

Circumstances can arise where an individual is working on an independent contract basis but undertakes work or has a relationship with the employer which suggests they are actually an employee. In these circumstances, the individual may be eligible to make an unfair dismissal claim to the FWC. The fundamental difference between an employee and a contractor is that an employee’s work serves the employer’s business while a contractor carries out trade or business of their own.

High-Income Threshold

Employees who received more than the high-income threshold annually will be considered high-income earners and therefore ineligible to make an application to the FWC. The calculation of income will not include bonuses, fringe benefits tax or supplied goods for personal use from the employer. Currently, as of 2022, the high-income threshold is just over $150,000. This threshold is adjusted annually and you can confirm the current amount in the FWC’s Unfair Dismissals Benchbook.

Modern Award or Enterprise Agreement

Most employees are covered by a modern award. Usually, an employment contract will set out what award the role relates to. Otherwise, the FWC website provides a free service that can help individuals identify which modern award may apply to them. Each award will outline which roles are covered by the award. Therefore, determining which modern award applies to you should not be a difficult task. An enterprise agreement will cover an employee if it expressly states so. Commonly an enterprise agreement will set out the coverage of the agreement and identify employees who will be bound by the agreement. If an employee does not expressly and clearly fall under the classification of employees bound by the agreement the FWC will not bind the employee to the agreement.

Minimum Work Period

An employee will only be eligible to make an unfair dismissal claim if they have been employed continuously for:

  • six months; or
  • one year, where the employer is defined as a Small Business.

What If I Was Employed On A Casual Basis?

For casual employees, it will need to be substantiated that there was a continuous period of regular and systemic employment and there was no intention of the engagement ending in the relevant period.


Dismissal will occur where the employment has been terminated on the employer’s initiative or the person has been forced to resign due to the employer’s conduct. Dismissal will not take effect until such time as it is communicated to the employee. Communication of dismissal can be written or oral. If the communication of dismissal is written the employee must receive the written notice for the dismissal to take effect.

Forced Resignation or Constructive Dismissal

Forced resignation, sometimes referred to as ‘constructive dismissal’ occurs when the employee has no real choice but to resign. The employee will need to prove that they did not resign voluntarily and rather were forced by the employer. The FWC will carefully consider whether there was no real choice to resign or if a decision was made on the employee’s own initiative.

We are also able to assist you if you are currently experiencing bullying and harassment in the workplace.


If an employee is demoted and this demotion involved a significant reduction in duties or remuneration, it may still be considered a ‘dismissal’ even where the employee remains employed in that demoted position.

When Will A Dismissal Be Unfair?

A dismissal will be considered ‘unfair’ if, in the circumstances, it was harsh, unjust or unreasonable. The FWC will consider:

  1. whether there was a valid reason for dismissal relating to the employee’s capacity or conduct;
  2. notification of the reason for dismissal;
  3. whether the employee was given an opportunity to respond to any allegation relating to their capacity or conduct;
  4. an unreasonable refusal for a support person to be present;
  5. the size of the employer’s company/business and what procedures are in place for dismissals;
  6. whether or not there are any dedicated HR management specialists or experts working with the employer.
Serious Misconduct

Where an employee is alleged to have committed serious misconduct the unfair aspect of the dismissal is considered in the context of the seriousness of the misconduct. Serious misconduct is defined as ‘…conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract.’ Conduct that also causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business will also be considered serious misconduct.

In cases of serious misconduct, the FWC will consider whether the dismissal is ‘sound, defensible or well-founded’. The Commission will also consider even where there is a valid reason for the dismissal and if summary dismissal was a disproportionate response.

The Application Process

After lodging an application for unfair dismissal with the FWC an employer will be entitled to respond to the application and submit any jurisdictional or factual objections they may have to the claim. Following the receipt of an employee response, the FWC will list the matter for a conciliation conference. Usually, a conciliation conference is held over the telephone and does not require the parties to be in the same room. If the matter cannot be resolved at the conciliation conference, the matter will proceed to a formal hearing or conference at which time the outcome is made by a Member of the FWC.

Outcomes of a formal hearing or conference can include reinstatement of the employee to their previously held position or monetary compensation. If the FWC considers compensation an appropriate avenue, the amount they can award is capped, however, this differs from the compensation that can be agreed upon at a conciliation conference. For this reason, it is important to engage solicitors as early as possible in any dispute as reaching an early resolution can prevent significant stress and financial strain.

Additional Resources

The Fair Work Commission provides an Unfair Dismissal Benchbook to assist parties lodging or responding to applications before the commission.

If you would like assistance to prepare your material or need advice on anything contained in the Benchbook, our solicitors are happy to discuss your circumstances and assist you.

The Fair Work Ombudsman also offers educational information regarding unfair dismissal for employees and businesses.

Focused On Results

It is essential you have experienced solicitors when dealing with employment law related matters, particularly if you are required to appear before a tribunal such as the Fair Work Commission. If you have experienced an unfair dismissal in the workplace or a substantial demotion in position, or if an application for unfair dismissal has been brought against your business, our employment law team will make sure your rights are protected. We are also able to assist employers in any termination process to mitigate the risk of an unfair dismissal application being brought.

Aitken Whyte Lawyers Brisbane are focused on results. Our solicitors can assist you with all employment law matters. Call today to discuss your needs.

Office Location and Contact Details


Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au