What Makes a Dismissal Unfair? Understanding Your Rights

Being let go from your job can be confronting, confusing, and emotionally draining. Under Australia’s national workplace laws, not every dismissal is lawful — and in some cases, it may be classed as unfair.

If you’ve recently lost your job and something about it didn’t feel right, it’s worth understanding what the Fair Work Commission considers an unfair dismissal — and how the process works if you decide to challenge it. You have every right to seek answers, and doing so is not only lawful — it’s a sensible and legitimate way to protect your future.

What is an Unfair Dismissal?

Under the Fair Work Act 2009, a dismissal may be considered unfair if your employer didn’t have a valid reason to let you go, didn’t follow a fair process, or treated you so harshly that the dismissal was unreasonable in the circumstances. A dismissal will also be unfair if it wasn’t a genuine redundancy, or if you were working for a small business and the dismissal didn’t follow the required Code.

But what actually counts as "harsh", "unjust", or "unreasonable"? The Commission looks at a range of factors, and not every case is black and white. However, some common themes do stand out.

A Valid Reason Matters — and So Does the Truth

Your employer should have a proper reason for ending your employment — one that is real, genuine, and based on either your conduct or your ability to do the job. Reasons that are vague, shifting, or feel more like an excuse than a clear explanation usually won’t hold up.

If you were let go without being told why, or the reason didn’t make sense based on your performance, that can weigh heavily in your favour. There simply must be a well-founded, defensible and justifiable reason to exercise termination, as this typically seen as a last resort; meaning the evidence required to substantiate this outcome will need to be strong.

You Deserve a Chance to Be Heard

Even if there were concerns about your work, your employer should give you a chance to respond before making a final decision. It’s not enough to have a private conversation and then be fired the next day — you are entitled to a fair and open process. A proper dismissal process gives you the opportunity to explain, clarify, or provide context — and that opportunity should come before the decision is made, not after. Procedural fairness is a vital component in this dismissal process, you must be given a genuine opportunity to save your job, discuss all grievances and influence the outcome before it is made.

Support Person, Warnings, and Respectful Treatment

If you were called into a disciplinary or termination meeting, you had the right to request a support person — someone to attend the meeting with you to help ensure it was fair. While your employer isn’t required to offer one automatically, refusing one without good reason can count against them.

Likewise, if your dismissal was because of poor performance, the Commission will want to see whether you were warned about it and given time to improve. Firing someone without first giving them a fair go to turn things around is rarely considered reasonable.

Even the way a dismissal is carried out matters. If it was rushed, unexpected, done by email or over a video call with no notice or chance to prepare, the Commission may consider it disrespectful and harsh — especially when a face-to-face discussion would have been more appropriate.

The Bigger Picture

The Commission can also consider broader circumstances, such as the size of the business, whether the employer had HR support, how long you worked there, whether you had a clean record, and how the dismissal has affected your ability to find new work.

Just because a company is small doesn’t mean they can ignore basic fairness — they are still expected to treat their employees with decency and follow lawful processes. And if your employer did have a dedicated HR team or access to professional advice, the standard expected of them is even higher.

Stand up for yourself

Many employees hesitate to speak up because they feel guilty, nervous, or unsure about challenging a dismissal. That’s completely understandable — but it’s important to know that you have a legal right to challenge an unfair dismissal, and the system is there to support workers like you.

Making an unfair dismissal claim through the Fair Work Commission is a secure, and non-threatening process. It makes you someone who understands that your job — and the way you’re treated — matters.

You’re not suing anyone. You’re simply asking the Commission to look at what happened and decide whether it was fair, based on the law. At the very least, hold your former employer accountable and ensure that such practices do not persist within the business, to other employees.

Time limits apply…

If you’ve been dismissed and want to lodge an unfair dismissal application, you must do it within 21 calendar days from the date your dismissal takes effect. That time limit is strict, and unless you have truly exceptional circumstances, the Commission won’t accept late applications.

At Workplace Justice, we help employees understand their rights and take action when a dismissal feels wrong. We act only for employees — not businesses — and we’ll listen carefully to what happened, help you prepare your application, and guide you through the process from start to finish.

This is your chance to be heard — and we’re here to help you do it with confidence and care.