Understanding Unfair Dismissal Laws in Victoria, Australia: A Guide to Your Rights and Compensation

In the ever-evolving landscape of employment in Victoria, Australia, understanding your rights under unfair dismissal laws is crucial. Whether you’re in South Morang or elsewhere in the state, navigating the complexities of workplace law can be daunting. This guide is designed to shed light on what unfair dismissal is, the process for making a claim, and the types of compensation you might be entitled to if your claim is successful. Armed with this knowledge, you’ll be better equipped to protect your rights and seek the justice you deserve.

What is Unfair Dismissal?

Unfair dismissal occurs when an employee is dismissed from their job in a harsh, unjust, or unreasonable manner. The Fair Work Act 2009 governs these regulations at a national level, setting the standard for what constitutes unfair treatment in the workplace. However, it’s important to note that not all dismissals might fall under this category. For instance, being let go due to legitimate business redundancy or for lawful reasons related to performance or conduct does not usually qualify as unfair dismissal.

In Victoria, as in the rest of Australia, an unfair dismissal claim must satisfy certain criteria to be considered. The dismissal must be found to lack a valid reason, be procedurally unfair, or both. Essentially, if you’ve been terminated without a fair process or for reasons that don’t hold up under scrutiny, you might have a case for unfair dismissal.

Eligibility for Making an Unfair Dismissal Claim

Not everyone can lodge an unfair dismissal claim. There are specific eligibility requirements you need to meet:

  • Minimum Employment Period: You must have been employed for at least 6 months or 12 months if you work for a small business (defined as fewer than 15 employees).
  • Employment Type: You need to be a permanent employee (either full-time or part-time) or a long-term casual employee who has a reasonable expectation of ongoing work.
  • Earnings Cap: If your annual earnings exceed the high-income threshold (which is updated annually), you may not be eligible unless covered by a Modern Award or an Enterprise Agreement.

The Fair Work Commission (FWC) is the national workplace relations tribunal that handles unfair dismissal claims in Victoria and across Australia. It’s essential to file your claim with the FWC within 21 days of your dismissal becoming effective. Given the tight timeframe and the complexities involved, seeking legal advice promptly can significantly influence the outcome of your claim.

The Unfair Dismissal Claim Process

The process of making an unfair dismissal claim involves several steps, starting with the submission of an application to the Fair Work Commission. Here’s a simplified overview:

  • Filing the Claim: You must complete and submit an FWC Form F2 (Application for Unfair Dismissal Remedy) within 21 days of your dismissal.
  • Employer’s Response: Once your claim is filed, your employer will be notified and asked to provide a response.
  • Conciliation Conference: Most cases first go through a conciliation process, a confidential and informal negotiation facilitated by a conciliator from the FWC. This step aims to reach a mutual agreement without proceeding to a formal hearing.
  • Hearing: If conciliation doesn’t result in a settlement, your case may go to a hearing or conference before a Commission Member, who will make a decision based on the evidence presented.

The process can be complex and emotionally taxing, highlighting the importance of expert legal representation. Specialists in unfair dismissal and workplace law, particularly those familiar with the nuances of Victorian employment legislation, can provide invaluable guidance and support throughout your claim.

Types of Compensation for Unfair Dismissal

If you’re successful in your unfair dismissal claim, the Fair Work Commission may offer several types of remedies. The goal is to put you in a position as close as possible to where you would have been if you had not been unfairly dismissed. Here are the main types of compensation and remedies that could be available to you:


The most direct remedy for unfair dismissal is reinstatement to your former position. This means you get your job back, along with any entitlements you would have accrued had you not been dismissed. While reinstatement is the preferred remedy under the Fair Work Act, it’s not always practical or desired by both parties.


If reinstatement is not feasible, the Commission may order compensation. This is a monetary payment calculated based on the loss of wages from the time of dismissal until the final decision. However, there’s a cap on the amount of compensation that can be awarded, which is the lesser of half the high-income threshold (calculated at the time of dismissal) or 26 weeks of the employee’s wage. Factors considered in determining compensation include the length of service, the circumstances of the dismissal, and efforts to mitigate loss (e.g., finding new employment).

Non-monetary Remedies

In some cases, the Commission might consider non-monetary remedies, such as issuing a formal apology or providing a positive reference. These remedies are less common and typically accompany another form of compensation or reinstatement.

It’s important to remember that each case is unique, and the Commission will consider various factors, including the impact of the dismissal on the employee and any misconduct leading to the dismissal. Legal representation can help you navigate these complexities and argue for the most appropriate remedy.

Case Studies and Precedents

To better understand how unfair dismissal claims are handled in Victoria, let’s look at a couple of anonymised case studies:

Case Study 1: Successful Reinstatement

A South Morang-based employee was dismissed without proper cause as their employer claimed operational reasons that were not substantiated. The employee, with the help of a local employment lawyer, filed an unfair dismissal claim. The Fair Work Commission found the dismissal to be without valid reason and ordered reinstatement, recognising the employee’s long service and the employer’s failure to follow correct procedures.

Case Study 2: Compensation Awarded

Another case involved a Melbourne employee dismissed for alleged misconduct. However, the investigation was flawed, and the employee was not given a fair chance to respond to the allegations. The Commission awarded compensation equivalent to four months’ wages, considering the employee’s efforts to find new employment and the emotional distress suffered.

These case studies highlight the importance of presenting a well-prepared case to the Fair Work Commission. Success in an unfair dismissal claim can depend on various factors, including the quality of evidence and legal argumentation.

How to Prepare for Your Unfair Dismissal Claim

Preparing a strong unfair dismissal claim involves several key steps:

  • Gather Evidence: Compile all relevant documents, including employment contracts, performance reviews, communication records (emails, messages), and any other evidence that supports your claim.
  • Document Everything: Keep a detailed record of the events leading up to and following your dismissal, including dates, times, and the names of individuals involved.
  • Seek Legal Advice: Engage a lawyer specialising in employment law, ideally one with experience in Victoria’s legal landscape. They can help you understand your rights, evaluate the strength of your claim, and navigate the legal process.
  • Prepare Your Submission: With your lawyer’s help, prepare a comprehensive submission to the Fair Work Commission, outlining your claim and including all supporting evidence.
  • Be Ready for Conciliation: Most cases are resolved during conciliation. Approach this process with an open mind, but be clear about your desired outcome. Your lawyer can negotiate on your behalf.

Taking these steps can significantly enhance your chances of a successful outcome in your unfair dismissal claim. Remember, the key to a strong claim is preparation, evidence, and expert legal representation.

Navigating the complexities of unfair dismissal claims in Victoria can be challenging, but understanding your rights and the processes involved is the first step towards achieving a fair resolution. Whether the remedy is reinstatement, compensation, or another form of redress, it’s essential to approach your claim with a solid foundation of knowledge and the right legal support.

Remember, every case of unfair dismissal is unique, with its circumstances and nuances. The success of your claim will depend on a variety of factors, including the strength of your evidence, the specifics of your employment situation, and the legal expertise at your disposal. Seeking the assistance of a specialised employment lawyer can provide you with the guidance needed to navigate the claim process effectively and maximize your chances of a favourable outcome.

As specialists in unfair dismissal and workplace law based in South Morang, we are committed to defending the rights of employees and ensuring they receive the justice and compensation they deserve. If you believe you have been unfairly dismissed, we encourage you to get in touch with us to discuss your case and explore your options.

Additional Resources

For those looking for more information or who wish to delve deeper into the specifics of unfair dismissal laws in Victoria, here are some valuable resources:

  • Fair Work Commission: The national workplace relations tribunal offers comprehensive guides, application forms, and resources for those considering an unfair dismissal claim. Fair Work Commission Website
  • Fair Work Ombudsman: Provides education and information on rights and obligations under Australian employment law. Fair Work Ombudsman Website

These resources can provide further insights into your rights and the legal avenues available to you, complementing the advice and representation from your legal counsel.

If you’re facing an unfair dismissal or have concerns about your employment rights in Victoria, don’t hesitate to reach out for professional advice. Our South Morang-based law firm specialises in employment law, and we’re here to help you navigate the complexities of your case with expertise and compassion. You can book a free case assessment here.