5 Unfair Dismissal Traps That Could Derail Your Case

When you've just been sacked, it’s natural to focus on what your employer did wrong. But even if your dismissal feels blatantly unfair, there are still legal hurdles that can trip you up before your case even gets off the ground. Knowing these traps—and how to avoid them—could mean the difference between walking away with compensation or walking away with nothing.

Let’s break down five of the most common (and avoidable) unfair dismissal pitfalls that employees face in the Fair Work Commission.

1. Missing the 21-Day Deadline

You only have 21 days from the date your dismissal takes effect to file an unfair dismissal application. Miss that window—even by a day—and the Commission will likely refuse to hear your claim unless you can prove “exceptional circumstances.” That’s a high bar.

Tip: File your application early, even if it’s incomplete. You can amend it later if needed. Waiting for that “perfect draft” could cost you your chance altogether .

2. Not Meeting the Minimum Employment Period

If you’re working for a small business (fewer than 15 employees), you must have been employed for at least 12 months. For all other businesses, the minimum is 6 months.

Even if you’ve worked a lot of hours as a casual, your time might not count unless your employment was regular, systematic, and there was a reasonable expectation of ongoing work .

3. Assuming Your Case Is ‘Obviously’ Unfair

Even if your firing felt wrong, that’s not enough. The Commission looks at specific legal factors under the Fair Work Act, including:

• Whether there was a valid reason for the dismissal

• Whether you were notified of that reason

• Whether you were given a chance to respond

• Whether you had the option to bring a support person to any dismissal meeting

Many claims fail simply because the employee can’t prove one of these points. Always check the full list of Section 387 criteria before lodging a claim.

4. Overlooking the Small Business Fair Dismissal Code

If you worked for a small business, your dismissal might be considered “fair” if the employer followed the Code—even if it feels harsh or unreasonable. The Code gives small business owners extra protection when terminating staff, as long as they follow a basic checklist.

If they complied with the Code, your unfair dismissal claim could be shut down immediately .

5. Thinking You Don’t Need Representation

Many employees try to represent themselves, thinking it will save money. But unfair dismissal law is notoriously complex. From jurisdictional objections to procedural fairness arguments, one misstep could sink your claim.

Having experienced representation gives you a strategic edge, helps you present your case more effectively, and significantly improves your chance of a successful outcome.

Final Thoughts

Standing up to a dismissal isn’t just about holding your former employer accountable—it’s about protecting your rights and future job prospects. But a strong case requires more than just emotion or opinion. It takes strategy, timing, and a solid understanding of the law.

If you’ve been dismissed and think it was unfair, don’t leave your future to chance. Speak to a professional who knows how to navigate the system.