Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act) provides national system employees with the right to bring an unfair dismissal claim if their employment is terminated by their employer. However, certain employees are excluded from the right to bring an unfair dismissal claim, and certain types of dismissals may not be the subject of such a claim.

See Eligibility to make an unfair dismissal claim.

One of the requirements for protection from unfair dismissal is that:

• the employee is covered by an award

• an enterprise agreement applies to the employee; or

• the employee’s annual rate of earnings is less than the high income threshold

The effect of this provision is that an award/agreement-free employee who earns at or above the high income threshold is ineligible to make an unfair dismissal claim.

See Unfair dismissal high income threshold.

An unfair dismissal claim cannot proceed if the employee’s dismissal was:

• a genuine redundancy

• effected in accordance with the Small Business Fair Dismissal Code (in the case of a small business employer)

A dismissed employee’s unfair dismissal claim will succeed if the employee can establish that the dismissal was “harsh, unjust or unreasonable”. This involves consideration of whether:

• the employer had a “valid reason” for dismissal relating to the employee’s capacity or conduct (see Unfair dismissal: Valid reason for dismissal); and

• the employer accorded the employee “procedural fairness” in the process leading to the dismissal (see Unfair dismissal — Procedural fairness).

• any other matters that the FWC considers relevant.

Unfair dismissal applications under Part 3-2 of the FW Act are lodged with, and determined by, the Fair Work Commission (FWC).

See Unfair dismissal: FWC process for resolving claims.

A successful unfair dismissal application may result in the FWC ordering reinstatement of the dismissed employee and/or payment of compensation. While the FW Act makes reinstatement the default option, in most cases reinstatement is deemed inappropriate because in the view of the FWC there has been an irretrievable breakdown in the parties’ relationship. Accordingly, successful applicants usually receive an award of compensation.

See Unfair dismissal — Remedies.

An employee who has been dismissed from their employment may pursue a number of other claims aside from an unfair dismissal application. These include:

• a general protections claim under the Fair Work Act 2009 (Cth);

• a complaint under Federal or State anti-discrimination laws; or

• a breach of contract claim.

See Legal actions available to a dismissed employee.

The unfair dismissal protections under the FW Act have effectively supplanted the state unfair dismissal laws for most employees. However, state laws continue to operate in relation to the public sector in most states, local government (in some instances) and, to a very limited extent, employees in the private sector in Western Australia.

See Unfair dismissal under State Law.