Unfair Dismissal Cases in Australia: Know Your Rights and Next Steps

Losing your job without warning is often extremely stressful. You may feel angry, confused, or embarrassed. Many Queensland employees in this situation ask the same question: “Was my dismissal fair?”

In Australia, employment law is designed to protect workers from harsh, unjust, or unreasonable treatment. If you believe you’ve been dismissed unfairly, you may have legal rights under the Fair Work Act 2009 (Cth) to challenge your employer’s decision.

This guide explains what unfair dismissal really means, how the law applies, and what practical steps you can take. It also highlights why seeking advice from experienced lawyers like Mark Game and the team at Aylward Game Solicitors, who serve clients across Brisbane, the Gold Coast, and the Sunshine Coast, can make all the difference.

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What Is an Unfair Dismissal?

Under section 385 of the Fair Work Act 2009, a dismissal is unfair if:

1. The employee was actually dismissed; and
   
2. The dismissal was harsh, unjust, or unreasonable; and
   
3. It was not a genuine redundancy; and
   
4. It was not consistent with the Small Business Fair Dismissal Code (for small employers).
   

In simple terms, your employer must have a valid reason for letting you go and must follow a fair process. Being fired on the spot, without warning or explanation, often breaches those rules.

When Can a Dismissal Be Challenged?

You may be eligible to lodge an unfair dismissal claim if you:

• Were employed for at least six months (or twelve months if your employer has fewer than 15 employees);
  
• Earn less than the high-income threshold (currently $183,100 per year as of 2025) or are covered by an award or enterprise agreement; and
  
• Lodge your application within 21 days of being dismissed.
  

Missing that 21-day deadline can end your right to claim, so early legal advice is crucial.

Common Examples of Unfair Dismissal in Queensland

Every workplace situation is different, but some of the most common cases we see at Aylward Game Solicitors include:

1. Dismissal Without a Valid Reason

Imagine being terminated via email with vague wording such as “not a good fit”. If there’s no genuine reason related to your performance or conduct, the dismissal may be unfair. Employers must have evidence — not just opinions.

2. Retaliation for Speaking Up

You cannot be fired for making a legitimate complaint — whether about bullying, unpaid wages, safety issues, or discrimination. Terminating someone for asserting a workplace right breaches the general protections provisions of the Fair Work Act.

3. Sham Redundancy

Some employers disguise terminations as “redundancy”. A redundancy isn’t genuine if the role still exists or could have been offered elsewhere within the organisation. Failing to properly consult also makes it invalid.

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4. Dismissal for Health Reasons

Sacking an employee because of an illness or disability can breach both employment and anti-discrimination law. Employers must explore reasonable adjustments before taking any action.

5. Constructive Dismissal (Forced Resignation)

Sometimes an employee resigns because the workplace becomes unbearable — constant harassment, unreasonable workloads, or being sidelined. In law, this is called constructive dismissal and it’s treated as though the employer actually terminated the job.

Recent High-Court Shift: Psychiatric Harm and the Dismissal Process

In December 2024, the High Court of Australia significantly revised the approach to damages for psychological injury resulting from dismissal.

An employee was dismissed following a flawed disciplinary process. The employer used undisclosed allegations and did not follow its own policy. As a result, the employee developed major depressive and adjustment disorders.

Historically, the 1909 case Addis v Gramophone prevented workers from claiming damages for emotional distress linked to dismissal. The High Court overturned that precedent, holding that:

• Contractual disciplinary policies can be binding obligations, and
• Psychiatric injury caused by breach of those obligations is not too remote to attract damages.

If an employer’s unfair process causes serious psychological harm, affected employees can now seek compensation beyond the Fair Work Commission’s usual $91,550 cap. This represents a significant development in Australian employment law.

Understanding the Fair Work Commission Process

Once you lodge a claim, the Fair Work Commission (FWC) will:

1. Notify your employer and request a written response; 
2. Arrange a conciliation conference, usually by phone, where both parties attempt to settle; and 
3. If no settlement occurs, schedule a formal hearing before a Commission Member. 

At the hearing, the FWC considers eight key factors under section 387 of the Act:

• Was there a valid reason for dismissal? 
• Were you notified of that reason? 
• Did you have an opportunity to respond? 
• Were you allowed a support person? 
• Were you warned about poor performance (if relevant)? 
• How did the employer’s size and HR resources affect the process? 
• Were there procedural defects? 
• Any other relevant matters. 

If the FWC decides your dismissal was unfair, it can order reinstatement to your job or compensation for lost wages.

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Trust Aylward Game Solicitors to Navigate Your Legal Challenges

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Call Us (1800) 217 217

Illustrative Cases: Lessons for Employees and Employers

The Basketball Backboard Case – Lander v Simmark (2022 FWC 2753)

An experienced tradesman accidentally broke a client’s basketball backboard while working. Although it was a careless error, the Commission decided it was serious misconduct because it put the employer’s reputation at risk. The dismissal was upheld, showing that even one mistake can lead to termination if trust is lost.

The Whistle-blower Case

A compliance officer who reported internal fraud was dismissed weeks later, supposedly due to ‘restructuring.’ The FWC found this was actually retaliation, which is both unlawful and unfair. Retaliating against whistle-blowers is one of the clearest examples of unfair dismissal.

The Probationary Dismissal

A junior architect was dismissed two days before her probation ended with no feedback. The FWC accepted that probation gives flexibility but emphasised that even probationary staff deserve procedural fairness. Communication and documentation are key.

Why Employees Often Lose Fair Work Claims

The Commission sees thousands of unfair dismissal cases each year, but not all succeed. Common mistakes include:

• Lodging after the 21-day limit;
  
• Failing to provide clear evidence (emails, meeting notes, etc.);
  
• Misunderstanding eligibility (earning above the threshold or not being an employee); or
  
• Confusing unfair dismissal with unlawful termination (different legal bases).
  

Getting early legal guidance from a professional who understands both employment contracts and litigation—like Mark Game—can prevent costly missteps.

What Compensation Can You Receive?

If successful, the Commission may award:

• Reinstatement to your former role; or
  
• Financial compensation capped at the lower of six months’ wages or half the high-income threshold ($91,550 as of 2025).
  

In rare cases, following the High Court’s new position, employees may also pursue contractual damages for psychiatric injury in the regular courts — potentially far higher.

Get Ahead with Expert Legal Guidance

Trust Aylward Game Solicitors to Navigate Your Legal Challenges

Schedule Your Appointment Now

Call Us (1800) 217 217

Key Legal Concepts Explained

Harsh, Unjust or Unreasonable

A dismissal may be harsh if the outcome is disproportionate to the conduct, unjust if you didn’t commit the alleged offence, or unreasonable if the evidence doesn’t support the employer’s conclusion.

Genuine Redundancy

To qualify, the role must genuinely no longer exist, redeployment must be impractical, and the employer must consult the employee before finalising the decision.

Small Business Fair Dismissal Code

For employers with fewer than 15 staff, the Code provides simplified procedures. However, “summary dismissal” still requires evidence of serious misconduct — not just personality conflicts.

How Employers Can Avoid Unfair Dismissal Claims

This issue isn’t one-sided. Employers can protect themselves by:

• Maintaining clear, written employment contracts;
  
• Training managers in procedural fairness;
  
• Documenting all warnings and meetings; and
  
• Treating each employee with dignity and respect during termination.
  

Aylward Game Solicitors frequently assists Queensland employers with compliance reviews and policy drafting to reduce risk.

Why Choose Aylward Game Solicitors

Founded by Mark Game, a solicitor admitted to both the Supreme Court of Queensland and the High Court of Australia, Aylward Game Solicitors has more than 80 years of combined legal experience.

From offices in Brisbane, the Gold Coast and the Sunshine Coast, the firm provides practical, results-focused advice in:

• Employment and Commercial Law
  
• Business Disputes and Litigation
  
• Family Law and Mediation
  
• Property and Conveyancing
  

Mark Game’s commercial background — including service as Senior Legal Counsel at Queensland Industry Development Corporation — equips him to handle complex workplace matters with precision and empathy.

If you’ve been dismissed unfairly, the firm will:

• Assess whether your dismissal meets the legal definition of unfair;
  
• Gather and prepare the evidence needed for conciliation or hearing;
  
• Represent you confidently before the Fair Work Commission; and
  
• Negotiate reinstatement or a fair settlement on your behalf.
  

Litigation is always a last resort — but if it becomes necessary, you’ll have a trusted advocate in your corner.

What to Do if You Think You’ve Been Unfairly Dismissed

1. Act quickly – You have 21 days from your dismissal date to apply.
   
2. Gather evidence – Emails, texts, meeting notes, and payslips all help.
   
3. Get legal advice – Aylward Game Solicitors can advise you on eligibility, prospects, and strategy.
   
4. Stay professional – Avoid angry posts or confrontations that might harm your case.
   
5. Consider settlement – Many cases resolve through conciliation without the stress of a hearing.
   

Get Ahead with Expert Legal Guidance

Trust Aylward Game Solicitors to Navigate Your Legal Challenges

Schedule Your Appointment Now

Call Us (1800) 217 217

Frequently Asked Questions (FAQ)

What qualifies as unfair dismissal in Australia?

A dismissal is unfair if it’s harsh, unjust, or unreasonable under s 385 of the Fair Work Act 2009. It usually means there was no valid reason or a flawed process.

How long do I have to file an unfair dismissal claim?

You must apply to the Fair Work Commission within 21 days of your termination taking effect.

Can casual workers claim unfair dismissal?

Yes, if they worked regularly and systematically and had a reasonable expectation of ongoing employment.

Is redundancy always fair?

No. A redundancy isn’t genuine if the role still exists or if the employer didn’t explore redeployment options.

What compensation can I receive?

Up to six months’ pay (capped at $91,550 for 2025) or reinstatement. Contract-based claims can sometimes recover more.

Can I claim if I resigned but was forced to?

Yes. That’s known as constructive dismissal and can be treated as an unfair dismissal.

Do I need a lawyer to file a claim?

It’s not mandatory, but professional guidance improves your chances significantly — especially when procedural or evidentiary issues arise.

Can I be dismissed during probation?

Yes, but the employer must still act fairly and within the law. Arbitrary or discriminatory terminations can still be challenged.

Does mental health matter in unfair dismissal cases?

Absolutely. Employers must consider mental-health impacts and provide reasonable adjustments. Neglecting this can now attract serious liability.

Who can I contact for help?

Call Aylward Game Solicitors on 07 3236 0001 or visit aylwardgame.com.au for personalised legal advice.

Final Thoughts

Being dismissed from your job doesn’t have to mean the end of your career or dignity. Australian law protects employees from unfair treatment — but timing and evidence are everything.

Whether your issue involves wrongful termination, redundancy, or psychological harm, the experienced team at Aylward Game Solicitors can guide you through the process with clarity and compassion.

If you’re based in Brisbane, the Gold Coast or the Sunshine Coast, and believe your dismissal was unfair, don’t wait.
Call 07 3236 0001 today and speak with Mark Game and his employment-law team — experienced professionals committed to helping you get the justice you deserve.