Dismissed Too Soon to Challenge It? The Truth About Minimum Employment Periods

You’ve just lost your job, and you feel it wasn’t fair. Maybe you weren’t warned, weren’t given a chance to improve, or were blindsided by sudden accusations. Naturally, you want to challenge the dismissal — only to be told that you "weren’t employed long enough" to make a claim.

That’s when most people hear the words “minimum employment period” for the first time. It’s one of the most common reasons employers try to block unfair dismissal claims. But it’s not always the end of the road.

In Australia, before you can bring an unfair dismissal application to the Fair Work Commission, you generally need to have completed a certain length of continuous service with your employer. This is called the minimum employment period, and it depends on the size of the business.

If your employer has 15 or more employees, the minimum period is 6 months. If it’s a small business — meaning fewer than 15 staff members — that period extends to 12 months.

Sounds straightforward, right? But in real life, the lines aren’t always so clear. There are many grey areas — and many employees mistakenly assume they’re not eligible when in fact, they are.

For example, have you been working casually but with regular hours and a pattern of ongoing shifts? That might count toward your continuous service, even if you weren’t officially "full-time." Were you initially hired through a labour hire agency or on a fixed-term contract before being offered a permanent role? Depending on the circumstances, your full service period might be longer than your most recent contract suggests.

Some employers even delay issuing formal employment letters or change your status to avoid triggering the minimum employment threshold. Others count only the time from when you were made permanent — ignoring prior months of stable work. These tactics don’t always hold up under scrutiny.

It’s also important to know that service is counted from the day you start working, not the date on your contract. If you were performing duties — even before your paperwork was finalised — that time may count.

If your employer is raising a jurisdictional objection based on your length of service, the Commission will look at the substance of the relationship, not just how it’s labelled. They’ll want to know whether you were genuinely working on an ongoing basis, whether your service was continuous, and whether any breaks were authorised or substantial enough to disrupt that continuity.

In some cases, employers miscalculate the number of employees they have, hoping to qualify as a small business and rely on the longer 12-month minimum. But if their business structure includes associated entities, or if casual workers are regularly employed, that headcount may be higher than they claim.

So don’t be discouraged if your boss tells you that you "can’t claim anything." Many employees are eligible to lodge an unfair dismissal application, even when they’re told otherwise.

You have every right to seek advice, clarify your entitlements, and push back on a jurisdictional objection if the facts are on your side. Don’t let an employer’s assumptions — or strategic interpretations — prevent you from getting the outcome you deserve.

You still only have 21 days from the date your dismissal takes effect to file your application. So if your time with the business is being questioned, it’s important to act quickly and get an accurate assessment of where you stand.

At Workplace Justice, we specialise in identifying exactly where employees fit within the rules — and fighting back when employers try to hide behind technicalities. If you’re not sure whether you’ve hit the minimum employment period, we’ll help you find out — and stand up for your rights if you have.

Because just like a fair go, the law is meant to protect you, not just your employer.