Overview of who may be eligible for an unfair dismissal claim under the Fair Work Act, including minimum employment periods and common exclusions.
What unfair dismissal means
Under the Fair Work Act 2009, a dismissal can be unfair when it is harsh, unjust, or unreasonable and you are covered by the unfair dismissal protections. The Commission looks at what happened, whether there was a valid reason, and whether the process was fair — see section 387 for the factors it must consider.
A common mistake is assuming that any dismissal you disagree with qualifies. Being let go after a restructure, for example, may still be fair if consultation was genuine and redeployment was considered. Conversely, being dismissed by text message after a single informal warning may look procedurally weak even where performance was an issue.
Only the Fair Work Commission (or a court on appeal) can decide a particular case. Fair Go helps you see whether you may be covered and whether it is worth documenting your situation before the deadline passes. It is general information, not legal advice.
Minimum employment period
Before you can apply for unfair dismissal, you usually need to have completed a minimum period of employment set out in sections 382–383 of the Act:
- 6 months for most employers
- 12 months if your employer is a small business (fewer than 15 employees at the time of dismissal)
Count from when you started, including any probation that formed part of an ongoing role. If you were dismissed on day 89 of a 6-month qualifying period, unfair dismissal may not be available even if the reason looks weak — though other pathways (such as general protections) may still apply.
Common reasons you may not be covered
The Fair Work Ombudsman publishes plain-English guidance on who can apply. In practice, these are the exclusions I see people stumble on most often:
- Your annual rate of earnings exceeds the high income threshold ($183,100 excluding super for FY2025-26) and no modern award or enterprise agreement covers you
- You were employed for less than the minimum employment period
- Your employment was genuinely fixed-term and ended at the end of the term
- You were a contractor rather than an employee — this is often disputed and depends on how you actually worked
- Your dismissal was a genuine redundancy that followed proper consultation and redeployment steps under the Act
If one of these applies, do not assume you have no options at all. General protections, unlawful termination, or state laws may still be relevant. The point is that the unfair dismissal pathway specifically may be closed.
What to do next
If you think you may be eligible, two things matter immediately: understanding whether you have a claim, and knowing how long you have to lodge with the Commission (21 days for most unfair dismissal applications).
Write down the dismissal date from your termination letter now. Note who told you, what reason was given, and whether you were invited to respond. Fair Go's free check walks through coverage and timing in plain English, then helps you build a private record if you want to prepare.