Being dismissed from your job can be incredibly stressful, especially when the termination feels unjust. If you’re facing unfair dismissal in NSW, it’s crucial to understand your rights and the legal remedies available to you. Australian employment law protects workers from dismissals that are harsh, unjust or unreasonable.
This guide outlines what qualifies as unfair dismissal NSW, how to make a claim, what compensation may apply, and how unfair dismissal lawyers can assist throughout the process.
What Is Unfair Dismissal NSW?
Unfair dismissal in NSW occurs when an employee is terminated in a manner that is considered harsh, unjust or unreasonable under the Fair Work Act 2009. This legislation sets out clear standards for how employers must handle termination, including the need for a valid reason and a fair process.
A dismissal may be considered unfair if:
- There was no valid reason related to conduct or performance
- You weren’t given a genuine opportunity to respond
- The employer failed to follow a fair and lawful procedure
These principles apply to eligible employees across most sectors in New South Wales.
Difference Between Unfair, Improper, and False Termination
Although often confused, these terms have distinct legal meanings:
- Unfair dismissal relates to how the termination was handled — whether it lacked fairness or a valid basis.
- Improper termination involves procedural breaches, such as not following company policy or breaching a contract.
- False termination means the employer gave a dishonest or misleading reason for ending your employment.
Understanding these distinctions helps determine which type of claim, if any, is appropriate for your situation.
Three Circumstances That May Constitute Unfair Dismissal
- Lack of procedural fairness – You were dismissed without a performance review or chance to respond.
- Dismissal for poor performance without warning – You were never told there was a problem, nor given a chance to improve.
- Unfounded allegations – You were let go based on accusations that were never properly investigated or proven.
Five Automatically Unfair Dismissal Reasons
Some dismissals are considered automatically unfair under Australian employment law. These include being terminated for:
- Discrimination – Based on race, gender, age, disability, sexual orientation, etc.
- Illness or injury – Taking time off for temporary illness or workplace injury
- Filing a complaint – Raising safety issues or lodging a formal workplace grievance
- Union involvement – Participating in lawful industrial action or union activity
- Pregnancy or parental leave – Taking or requesting parental/carer’s leave
Dismissals for any of the above reasons are not just unfair — they may also be unlawful, opening the door for more serious legal consequences for the employer.
Who Can Make an Unfair Dismissal Claim?
To lodge an unfair dismissal claim in NSW, you must be an employee covered by the national workplace relations system and meet specific eligibility criteria under the Fair Work Act 2009.
You’re likely eligible if:
- You’ve completed at least 6 months of continuous service with a larger employer
- You’ve worked 12 months if employed by a small business (fewer than 15 staff)
- You’re covered by a modern award, or enterprise agreement, or earn below the high-income threshold (currently $167,500/year)
Employment Types That May Qualify
Eligible workers typically include:
- Full-time and part-time employees
- Casual employees with regular hours and a reasonable expectation of ongoing work
- Apprentices and trainees, depending on their contract terms
Exclusions
You may be ineligible if you were:
- Terminated due to a genuine redundancy
- On a fixed-term contract that expired naturally
- Engaged as an independent contractor
- Resigned voluntarily (unless you were forced out — known as constructive dismissal)
What About Platform and Gig Workers?
The rise of the gig economy has sparked debate over who qualifies for unfair dismissal protections. Generally, platform workers such as food delivery riders or rideshare drivers are considered contractors — not employees — and are excluded from the Fair Work Act.
However, courts have increasingly examined the nature of these roles, not just the contract label. If your platform controls your schedule, pay, and work method, you may be found to be an employee — and therefore eligible to make an unfair dismissal claim in NSW.
Legal advice is strongly recommended for anyone in a grey area between contractor and employee.
Time Limits for Filing an Unfair Dismissal Claim
If you believe you’ve experienced unfair dismissal in NSW, time is not on your side. The Fair Work Commission imposes a strict deadline: you must lodge your claim within 21 calendar days from the date your dismissal takes effect.
This timeframe includes weekends and public holidays. Day one is counted from the day after your dismissal — not when you receive your final pay or separation certificate. Missing this deadline can severely affect your ability to seek compensation or reinstatement.
Can the Time Limit Be Extended?
In rare cases, the Commission may allow a late application, but only if you can show there were exceptional circumstances that prevented you from applying on time. Examples may include:
- Serious illness or hospitalisation
- Incorrect advice from a government agency
- Being misled by your employer about your rights
However, extensions are not granted easily, and the burden is on you to prove that the delay was beyond your control.
Why Acting Quickly Matters
Even if you’re unsure whether your situation qualifies as unfair dismissal, it’s crucial to seek legal advice as early as possible. Delays can:
- Weaken your case
- Result in loss of critical evidence
- Limit your legal options
An experienced legal representative can help assess your eligibility, gather the right documentation, and submit your application within the required timeframe — increasing your chances of a successful outcome.
If you suspect your termination was unjust, it’s best to act promptly. Waiting too long could mean losing your opportunity to hold your employer accountable.
How Much Compensation Can You Receive?
If your unfair dismissal claim succeeds, you may be awarded financial compensation by the Fair Work Commission. While reinstatement is technically an option, it’s rarely ordered. Most claimants receive a monetary payment instead.
What’s Covered?
Compensation aims to restore your financial position had the dismissal not occurred. This may include:
- Lost wages
- Superannuation contributions
- Unpaid entitlements such as annual leave or contractually guaranteed bonuses
Note: Bonuses are only compensable if they are contractually agreed or consistently paid as part of your regular remuneration. Discretionary bonuses typically do not qualify.
Your compensation may be reduced if you contributed to your dismissal (e.g. misconduct) or if you haven’t actively sought new employment.
Maximum Payouts
There is a legislated cap on compensation:
- 26 weeks’ pay, or
- Half the high-income threshold (currently $83,750) — whichever is lower.
Most successful applicants receive between a few thousand dollars and six months’ wages, depending on service length, employer conduct, and job prospects.
Unfair Dismissal vs. Wrongful Termination
While often used interchangeably, unfair dismissal and wrongful termination are distinct legal concepts.
Unfair dismissal NSW falls under the Fair Work Act and focuses on whether the employer’s actions were harsh, unjust, or unreasonable. It involves breaches of procedural fairness rather than contractual terms.
Wrongful termination, on the other hand, arises from a breach of contract — such as failing to give the required notice or unlawfully ending a fixed-term agreement. These claims are handled by courts, not the Fair Work Commission.
Choosing the right legal path is crucial. In some cases, both claims may apply. Speak to a legal professional to determine the most suitable option.
Working with Unfair Dismissal Lawyers in NSW
Successfully navigating an unfair dismissal in NSW often requires more than just knowing your rights — it takes strategy, precision, and a solid understanding of employment law. While the Fair Work Commission process is meant to be accessible, many employees benefit from professional guidance at every step.
Why Legal Advice Matters
An experienced employment lawyer can quickly assess your eligibility, determine the strength of your case, and ensure that your application is submitted correctly and on time. They can help you:
- Prepare persuasive written submissions
- Present evidence clearly and effectively
- Negotiate fair outcomes, including unfair dismissal compensation
- Avoid common mistakes that may jeopardise your claim
If you’re unsure whether your dismissal was unfair, improper, or a case of false termination, seeking legal advice is the most reliable way to move forward with confidence.
Finding the Right Representation
Not all law firms focus on employment matters. Choosing lawyers who regularly handle unfair dismissal claims ensures you’re working with professionals who understand the nuances of the system. The right legal team will provide honest advice, tailored strategy, and strong advocacy — whether you’re aiming for reinstatement, compensation, or closure.
Conclusion: Protect Your Rights After Unfair Dismissal in NSW
Experiencing an unfair dismissal NSW can leave you feeling uncertain and overwhelmed — but you don’t have to navigate it alone. Whether you’re questioning the reason for your termination, assessing your eligibility to make a claim, or considering compensation, understanding your rights is the first step towards resolving the situation.
Acting quickly, gathering the right information, and choosing the appropriate legal avenue can make a significant difference in the outcome of your case. Every situation is unique, and tailored legal advice is often the key to making informed decisions.
If you’re unsure about your options after an unfair dismissal, our team at KPT Legal can provide clear, practical guidance. We’ll help you understand where you stand and outline the steps available to move forward with confidence.
