While an abrupt termination of employment by way of unfair dismissal can be deeply distressing, legal recourse does exist for private sector workers in NSW. If you have been let go by your employer in a harsh, unjust or unreasonable manner, you may be eligible for reinstatement or compensation through the Fair Work Commission. However, navigating the complexities of determining whether a dismissal is unfair can be challenging, making it crucial to have the guidance of an experienced legal professional.

If you believe that you have been unfairly dismissed, don’t delay, contact Brydens Lawyers for expert legal advice and representation.

What is Unfair Dismissal?

Unfair dismissal occurs when an employee submits an unfair dismissal remedy application, and the Fair Work Commission determines that:

  • the employee was dismissed; and
  • the dismissal was harsh, unjust or unreasonable; and
  • the dismissal was not a matter of genuine redundancy; and
  • if the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code

The Fair Work Act 2009 (Cth) and state-based legislation outline the criteria for who can make an unfair dismissal claim and the factors considered in determining whether a dismissal is ‘harsh, unjust or unreasonable’.

What constitutes ‘dismissal’?

An employee is considered dismissed from their employment if:

  • their employer initiates the termination of their employment contract; or
  • the employee resigns due to the employer’s actions or a series of actions carried out by the employer

Defining ‘harsh, unjust or unreasonable’

A dismissal may be classified as:

  • harsh – when the penalty is excessive in comparison to the employee’s misconduct
  • unjust – when the employee is not responsible for the alleged misconduct

unreasonable – when the evidence presented to the employer does not justify the employee’s dismissal

Examples of Unfair Dismissal

Situations where an unfair dismissal application might be successful include:

  • Being dismissed based on false or incorrect allegations about your conduct
  • Being dismissed for poor performance without clear warnings or opportunities to improve
  • Being dismissed due to an injury or illness still in recovery
  • Being forced to resign by your employer’s conduct
  • Having your employment terminated for redundancy, but your position is given to another person

Being dismissed without a clear reason or without being given a fair chance to respond to the reasons for dismissal

Eligibility to Claim: Knowing Your Rights

Knowing if you are eligible to make an unfair dismissal claim is an essential part of understanding your rights as an employee. Let’s take a closer look at the criteria to determine eligibility.

What are the criteria to be eligible for an unfair dismissal claim?

To qualify for an unfair dismissal claim, you must:

  1. be an employee within the private sector in NSW (i.e. employing entities such as sole traders, Pty Ltd organisations and partnerships.)
  2. be covered by the national workplace relations system
  3. have completed the minimum employment period, which is:
    • 6 months for large businesses (employing 15 or more employees)
    • 12 months for small businesses (employing fewer than 15 employees)
  4. earn less than the high income threshold of $162,000

Are casual employees eligible for unfair dismissal claims?

Casual employees can be eligible for an unfair dismissal claim if they:

  1. meet the above-mentioned eligibility requirements
  2. were employed on a regular and systematic basis
  3. had a reasonable expectation of continuing their employment with their employer

What is the minimum employment period for making an unfair dismissal claim?

The minimum employment period varies based on the size of the employer:

  • 1 year for a small business employer (employing fewer than 15 employees)
  • 6 months for employers with 15 or more employees

When can an employee with earnings above the high income threshold make an unfair dismissal claim?

An employee with earnings exceeding $162,000 per year can still make an unfair dismissal claim if at least one of the following conditions applies:

  • The employee is covered by an award; or
  • The employee is covered by an enterprise agreement

Time limits do apply

It is important to be aware of the strict 21-day time limit for lodging an unfair dismissal claim. This countdown begins the day after your dismissal takes effect, which is when you physically stop attending your workplace. If you fail to submit your application within this time frame, the Fair Work Commission may only consider your claim under exceptional circumstances. To ensure your rights are protected, it is highly recommended that you act promptly and seek legal advice as soon as possible after your dismissal.

When can’t I claim?

In some cases, a dismissal may be considered valid and not eligible for an unfair dismissal claim. Understanding these scenarios is important when evaluating your situation.

What constitutes a valid reason for dismissal?

A valid reason for dismissal may be related to an employee’s conduct, capacity or performance. The reason must be sound and well-founded, not fickle, fanciful or biased. Here are some examples:

  1. Conduct: Serious misconduct can include breaching company policy, dishonesty, intoxication at work, or engaging in activities that pose a serious risk to health and safety, reputation or business viability.
  2. Out of hours conduct: In some cases, an employee’s behaviour outside of work may be considered a valid reason for dismissal if it causes serious damage to the employer-employee relationship, harms the employer’s interests, or is incompatible with the employee’s duties.
  3. Capacity: An employee’s inability to perform the inherent requirements of their role, including medical incapacity, may be considered a valid reason for dismissal.

Performance: Unsatisfactory performance in a role, such as not performing diligently or with quality, may also lead to dismissal. However, employees should be warned about their poor performance and given an opportunity to improve before dismissal.

What is a genuine redundancy?

A genuine redundancy occurs when:

  1. The employer no longer requires the employee’s job to be performed by anyone due to operational changes in the workplace
  2. The employer complies with any obligation in a modern award or enterprise agreement to consult with the affected employee about the proposed redundancy
  3. It is not possible to re-deploy the employee into another job in the employer’s business or an associated entity of the employer

If an employee’s position is made genuinely redundant, they cannot make an unfair dismissal claim.


Unfair dismissal can be a distressing and challenging experience for employees, but it is important to remember that legal options are available. The Fair Work Commission may provide avenues for reinstatement or compensation if you have been let go in a harsh, unjust or unreasonable manner. Understanding the criteria for unfair dismissal, your eligibility to make a claim, and the importance of adhering to the strict 21-day time limit is crucial in order to protect your rights as an employee.

Should you believe that you have been unfairly dismissed, it is vital to seek legal advice as soon as possible. An unfair dismissal lawyer can help you navigate the complexities of the law, understand your rights and options, and assist you in pursuing a claim for compensation or reinstatement. Don’t hesitate to take action—contact Brydens Lawyers to ensure your rights are protected and that you receive the support you need during this difficult time.