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Getting Fired

If you are under 25 and you are unsure about your rights or responsibilities or what to do next, you can get free, confidential legal advice at Lawmail.

What is unfair dismissal?

What can you do about unfair dismissal?

What is unlawful termination?

What can you do about unlawful termination?

What if I am a casual and my employer has stopped rostering me on shifts?

Other Claims

Where can I get further help?

Losing your job can be a really hard and stressful experience. If you think you have been fired unfairly or for the wrong reason, you may have rights under unlawful termination laws or unfair dismissal laws.

What is unfair dismissal?

Unfair dismissal is when your employer fires you in a harsh, unjust or unreasonable manner, or when you were forced to quit because of something your employer did.

For example:

  • If your employer suddenly fires you and does not tell you the reason, you may be able to make a complaint for unfair dismissal.
  • If you were fired for a reason that had nothing to do with your performance or conduct on the job, and was a not a genuine redundancy, then you may be able to make a complaint for unfair dismissal.
  • If you were fired because of a reason relating to your performance but you were not given an opportunity to respond to those reasons, or you were not given any warnings about your performance, then you may also be able to make an unfair dismissal complaint to the FWC.

What can you do about unfair dismissal?

To make an unfair dismissal complaint to the FWC, you must have:

  • worked for your employer for at least 6 months (or 12 months if they are a small business (ie have fewer than 15 employees)); and
  • you must:
  • have earned less than the high income threshold (currently $138,900 a year); or
  • be covered by a modern award or an enterprise agreement.

The application must be lodged within 21 days of the day you were fired.

If the FWC finds that you have been unfairly dismissed, the FWC can:

  • give you your job back (reinstatement), or a similar job at the same company (with or without maintaining continuity of service and ordering back pay); or
  • compensate you with money – up to the total amount that you would have earned in six months if you had kept working there, or half the high income threshold, whichever is less.

For more information on how to apply for unfair dismissal, you can check out this factsheet.

What is unlawful termination?

Unlawful termination is when an employer fires an employee for an unlawful reason. If you are terminated for an unlawful reason, you may be able to make a ‘general protections’ claim.

You may have the right to make a ‘general protections’ claim if your employment is terminated because (for example):

  • you exercise a workplace right;
  • you question your pay or entitlements;
  • you are temporarily absent from work because you are ill or injured;  or
  • because of your race, religion, physical or mental disability, political opinion, sex or certain other personal characteristics.

You can read more about protections at work here.

What can you do about unlawful termination?

If you think you have been unlawfully terminated, you can make an application to the Fair Work Commission (FWC) under the ‘general protection’ provisions relating to dismissal.

You have to make a claim within 21 days of your dismissal.

For more information on unlawful termination and to complete the online application form to make a claim to the FWC, you can click here.

In addition to claims with the FWC, if your employment is terminated because of a certain protected characteristic, such as your age, sex, political opinion or medical condition, you may also be able to make a discrimination claim with the relevant State, Territory or Federal anti-discrimination tribunal.

For further information on discrimination from the Australian Human Rights Commission, please click here.

What if I am a casual and my employer has stopped rostering me on shifts?

If your employer has stopped rostering you on shifts at work, you may be able to make an unfair dismissal claim. This depends on whether you can prove that:

  • your employment has been on a regular and systematic basis; and
  • you had a reasonable expectation of your employment continuing on a regular and systemic basis; and
  • you have been dismissed from your job; and
  • your dismissal was harsh, unjust or unreasonable (and was not a case of genuine redundancy i.e. your position/duties at work would still exist after you left the job).

If you can show that you were consistently and regularly working each week, roughly at the same time, you might be able to prove that your employment was systematic and regular. You would also need to show that you reasonably expected that pattern of work would continue.

This issue is likely to be determined from your employment records, which would need to support your claims of regular weekly work and a minimum number of shifts per week over an extended period. If the FWC accepts that you were employed on a regular and systematic basis with a reasonable expectation that would continue, then you may be eligible to lodge an unfair dismissal complaint.

It is important to remember that casual workers have no rights to regular shift work or regular hours and so it can be difficult to prove that your employer has done something wrong.

Other Claims

If your employment is terminated and not all laws were followed, you may have certain other claims.  For example, if your boss does not give you the right amount of notice terminating your employment, or terminates your contract before the date it was supposed to end on. 

In these situations you will need to get advice from the Fair Work Ombudsman or obtain specialist legal assistance.

Employees who are entitled to notice of termination can calculate their notice and redundancy using the FWO’s Pay and Conditions Tool – Notice and Redundancy calculator, available here.

Where can I get further help?

Employees can test their knowledge about pay in the FWO’s Workplace Basics Quiz, available here.

  • For information and advice about the Fair Work System including your rights, entitlements and obligations, visit the Fair Work Ombudsman website or call the Fair Work Info line on 13 13 94.
  • You can also send us a Lawmail here.

 

 NCYLC would like to express thanks to Hall & Wilcox and the Fair Work Ombudsman for assisting us with the preparation of this material.

This page was last updated in March 2017.