What is an unfair dismissal claim and how do I make one in Australia?

An unfair dismissal claim is an application to the Fair Work Commission (FWC) by an employee who believes they have been dismissed from their employment in a manner that was harsh, unjust, or unreasonable. Unfair dismissal is governed by Part 3-2 of the Fair Work Act 2009 (Cth). To make an unfair dismissal application, the employee must: have completed the minimum employment period (1 year for small business employers with fewer than 15 employees; 6 months for other employers); be earning below the high income threshold (currently $175,000 per year, indexed annually) OR be covered by a modern award or enterprise agreement; and not be excluded by another category (such as casual employees who are not employed on a regular and systematic basis). The application must be lodged with the FWC within 21 days of the date the dismissal took effect (s394(2) FW Act 2009). This is a strict deadline — the FWC can only extend it in exceptional circumstances. The application is made using the FWC's online portal (www.fwc.gov.au). The FWC will attempt to conciliate the dispute at a conference. If conciliation fails, the matter may proceed to an arbitration hearing. Remedies include reinstatement (s391) or compensation of up to 26 weeks' pay (s392).

What is the difference between an unfair dismissal claim and a general protections claim?

Unfair dismissal and general protections are two separate but sometimes overlapping claims that dismissed employees can make under the Fair Work Act 2009 (Cth). They have different legal tests, different remedies, and different eligibility requirements. An unfair dismissal claim (Part 3-2, s394) is based on the argument that the dismissal was harsh, unjust, or unreasonable — for example, because there was no valid reason, the employee was not given a proper warning, or the process was procedurally unfair. It only applies to employees who have completed the minimum employment period and are below the high income threshold (or covered by an award or agreement). A general protections dismissal claim (Part 3-1, s365) is based on the argument that the employer took adverse action (including dismissal) against the employee because the employee exercised a workplace right (such as making a complaint, taking sick leave, or joining a union), engaged in industrial activity, or because of a protected attribute (such as race, sex, age, or disability). General protections claims apply to all employees regardless of salary, length of service, or award coverage, and the compensation remedy is uncapped. However, the employee must prove that the adverse action was taken because of the protected reason — the employer has the reverse onus to disprove the connection (s361 FW Act 2009). Both claim types have the same 21-day limitation period.

What constitutes underpayment of wages under Australian law and how is it recovered?

Underpayment of wages occurs when an employer fails to pay an employee their minimum legal entitlements under the Fair Work Act 2009 (Cth), a modern award, an enterprise agreement, or a workplace determination. Common forms of underpayment include: paying below the applicable modern award minimum rates; not paying penalty rates for weekend, public holiday, or shift work; not paying overtime rates; not paying allowances (such as meal, uniform, or tool allowances); underpaying annual leave, personal/carer's leave, or long service leave entitlements; not paying superannuation (which is a separate obligation under the Superannuation Guarantee (Administration) Act 1992); and making unlawful deductions from wages. Underpayment can be recovered through: a complaint to the Fair Work Ombudsman (FWO) at www.fairwork.gov.au or 13 13 94, who has the power to investigate, issue compliance notices, and commence civil penalty proceedings; a small claims application to the Federal Circuit and Family Court of Australia under s548 of the FW Act 2009 for amounts up to $20,000; or a general Federal Circuit Court application for larger amounts. Employees have 6 years to recover underpaid wages under the Limitation Act 1969. From 1 January 2025, wage theft is also a criminal offence under the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 for employers who intentionally underpay employees.

What are the National Employment Standards (NES) and what are my minimum entitlements?

The National Employment Standards (NES) are 11 minimum employment entitlements set out in Part 2-2 of the Fair Work Act 2009 (Cth). They apply to all national system employees regardless of any award or agreement and cannot be excluded by agreement. The 11 NES entitlements are: (1) Maximum weekly hours: 38 ordinary hours per week plus reasonable additional hours (s62); (2) Requests for flexible working arrangements (s65); (3) Parental leave and related entitlements — 12 months unpaid (plus 12 more by agreement) (s67); (4) Annual leave — 4 weeks paid per year (s87) (5 weeks for shift workers); (5) Personal/carer's leave and compassionate leave — 10 days paid personal/carer's leave per year (s96), 2 days paid compassionate leave (s104); (6) Community service leave (s108); (7) Long service leave (s113); (8) Public holidays — right to be absent on public holidays (s114); (9) Notice of termination and redundancy pay (ss117–119); (10) Fair Work Information Statement (s125); and (11) Casual Employment Information Statement (s125AA). Modern awards and enterprise agreements can supplement but not undercut NES entitlements. If your employer has not provided any of these entitlements, you can complain to the Fair Work Ombudsman.

What is the 21-day deadline for unfair dismissal and general protections applications in Australia?

The 21-day deadline is one of the most important and strictly enforced time limits in Australian employment law. Under s394(2) of the Fair Work Act 2009 (Cth), an unfair dismissal application must be made to the Fair Work Commission within 21 days after the dismissal takes effect. Similarly, under s365(3), a general protections application involving dismissal must be made within 21 days after the dismissal takes effect. The dismissal 'takes effect' on the date the employment actually ends — typically the date the employee's notice period expires (not the date they are told they are being dismissed, unless they are dismissed without notice). The FWC has very limited discretion to extend the 21-day period under s394(3) and s366. An extension can only be granted if the FWC is satisfied that 'exceptional circumstances' exist, having regard to: the reason for the delay; whether the person first became aware of the dismissal after it took effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and the fairness between the person and other persons in similar situations. Late applications are frequently rejected. It is therefore critical to lodge an unfair dismissal or general protections application as soon as possible after dismissal. If you are unsure whether to lodge, do so immediately and seek legal advice afterwards.

Fair Work Complaint (Australia) — Australia

Lodge a complaint or application with the Fair Work Commission (FWC) or the Fair Work Ombudsman (FWO) under the Fair Work Act 2009 (Cth). Covers unfair dismissal (Part 3-2, s394), general protections dismissal and non-dismissal (Part 3-1, ss365 and 372), underpayment of wages and entitlements, breaches of the National Employment Standards (NES), workplace bullying (Part 6-4B, s789FC), sexual harassment in connection with work (Part 3-5A, s527C), adverse action, and sham contracting. Includes strict 21-day deadline warning for dismissal applications.

What Is a Fair Work Complaint (Australia)?

A Fair Work complaint or application is a formal document submitted to the Fair Work Commission (FWC) or the Fair Work Ombudsman (FWO) by an employee (or former employee) who believes their workplace rights under the Fair Work Act 2009 (Cth) have been violated. The Fair Work Act 2009 (Cth) is the primary legislation governing employment conditions for most Australian employees and employers. It establishes the National Employment Standards, regulates modern awards and enterprise agreements, and provides protections against unfair dismissal, general protections breaches, workplace bullying, and sexual harassment.

The Fair Work Commission is an independent statutory authority that deals with: unfair dismissal applications (Part 3-2, ss387–394); general protections applications involving dismissal (Part 3-1, s365) or other adverse action (s372); workplace bullying applications (Part 6-4B, s789FC); sexual harassment stop orders (Part 3-5A, s527C); and disputes about enterprise agreements, awards, and industrial action. The FWC is not a court — it is a tribunal that primarily uses conciliation (informal negotiation between parties) to resolve disputes. If conciliation fails, the FWC can arbitrate some matters and make binding orders.

The Fair Work Ombudsman is a separate regulatory body that: investigates complaints about underpayment of wages and entitlements; monitors compliance with the Fair Work Act 2009 (Cth), modern awards, and enterprise agreements; issues compliance notices requiring employers to rectify contraventions; commences civil penalty proceedings in the Federal Circuit and Family Court; and provides information and guidance to both employers and employees. The FWO can investigate anonymous complaints and has broad powers to request and inspect records and documents.

Fair Work complaints cover a wide range of employment disputes, from underpayment of minimum wage rates to wrongful dismissal, from workplace bullying to sham contracting. Understanding which body (FWC or FWO) handles which type of complaint, and the applicable time limits, is essential to the success of any Fair Work complaint.

When Do You Need a Fair Work Complaint (Australia)?

A Fair Work complaint is needed when an employer or former employer has breached your rights under the Fair Work Act 2009 (Cth) and you have been unable to resolve the matter directly. There are many situations that give rise to Fair Work complaints.

Unfair dismissal is one of the most common reasons for a Fair Work application. If you have been dismissed from your employment and you believe the dismissal was harsh, unjust, or unreasonable — for example, because there was no valid reason, because you were not warned or given an opportunity to respond, or because the process was unfair — you can apply to the FWC under s394 of the Fair Work Act 2009 (Cth). The 21-day limitation period from the date of dismissal is strict.

General protections violations cover a broad range of conduct. If your employer dismissed you, demoted you, reduced your hours, disciplined you, or otherwise took adverse action against you because you exercised a workplace right (such as making a complaint about pay, taking sick leave, or joining a union), or because of a protected attribute (age, race, sex, pregnancy, disability, or other protected ground), you can make a general protections application (s365 or s372 FW Act 2009).

Underpayment of wages is an increasingly prominent issue. If you have not been paid at least the minimum rate set by a modern award or enterprise agreement, if you have not received penalty rates, overtime, or allowances you are entitled to, or if you have not received your leave entitlements, you can complain to the Fair Work Ombudsman or make a small claims application to the court.

Workplace bullying applications are available under Part 6-4B of the Fair Work Act 2009 (Cth) where a worker is subjected to repeated unreasonable behaviour by an individual or group that creates a risk to health and safety. The FWC can make stop bullying orders.

Sexual harassment complaints can be made to the FWC under Part 3-5A of the Act for a 'stop sexual harassment' order, or to the Australian Human Rights Commission under the Sex Discrimination Act 1984 (Cth).

What to Include in Your Fair Work Complaint (Australia)

A Fair Work complaint or application to the Fair Work Commission or Fair Work Ombudsman must contain several key elements to enable the relevant body to assess and process the claim.

The complainant's identity and contact details must be provided. This includes the full name, address, email, and phone number of the employee or former employee making the complaint. The complaint must be made in the complainant's own name.

The employer's identity must be clearly stated. This includes the full legal name of the employer (including any trading name), ABN, address, and contact person. Using the name on your pay slips or employment contract helps identify the correct legal entity.

Employment details must be provided. This includes the job title, employment type (full-time, part-time, casual, fixed-term), commencement date, termination date (if applicable), and the applicable modern award or enterprise agreement. These details determine eligibility for certain claims (such as the minimum employment period for unfair dismissal) and the minimum entitlements that apply.

The type of complaint must be specified. Different types of complaints have different procedures and are handled by different bodies. Unfair dismissal and general protections applications go to the FWC. Underpayment and NES breach complaints typically go to the FWO. The complaint should identify the specific provision of the Fair Work Act 2009 (Cth) that has been breached.

A detailed factual summary of the complaint is essential. This should describe: what happened; when it happened (including the date of dismissal or the period of underpayment); what the employer said or did; what you said or did; any witnesses; and any documents supporting the complaint.

For underpayment complaints, specific financial details must be included. This includes the period of underpayment, the rate you were entitled to, the rate actually paid, and the estimated shortfall.

The outcome sought should be stated clearly. For unfair dismissal claims, this is typically reinstatement or compensation. For general protections, compensation for loss suffered. For underpayment, recovery of the unpaid wages and entitlements. For bullying, a stop bullying order.

Time limits must be observed. Unfair dismissal and general protections dismissal applications must be lodged within 21 days of the date of dismissal (ss394 and 365 FW Act 2009). This is the most critical element — a late application will be rejected unless exceptional circumstances exist.

What Is a Fair Work Complaint (Australia)?

When Do You Need a Fair Work Complaint (Australia)?

What to Include in Your Fair Work Complaint (Australia)

Frequently Asked Questions

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