Unfair Dismissal in New South Wales
Reviewed by the Commoner Law Editorial Team. Sourced from Commonwealth Acts of Parliament, federal regulations, and official government guidance. State-level information reflects each state's own Acts and court decisions. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards
What is this right?
If you've been fired and the dismissal was harsh, unjust, or unreasonable, you may be able to make an unfair dismissal claim with the Fair Work Commission.
To be eligible, you generally need to have completed the minimum employment period:
- 6 months if your employer has 15 or more employees.
- 12 months if your employer is a small business (fewer than 15 employees).
You must also earn below the high-income threshold (currently $175,000 per year), unless you are covered by an award or enterprise agreement.
Small-business employers can rely on the Small Business Fair Dismissal Code, which allows summary dismissal for serious misconduct and a simpler process for other dismissals.
If the Commission finds your dismissal was unfair, remedies include reinstatement (getting your job back) or compensation of up to 26 weeks' pay.
When does it apply?
- You have been dismissed (fired, contract not renewed, or forced to resign).
- You completed the minimum employment period (6 or 12 months).
- You earn under the high-income threshold or are covered by an award/agreement.
- You are not a genuine casual without a reasonable expectation of ongoing work.
What to Do If You Believe You Were Unfairly Dismissed in Australia
- Act fast — you must lodge your application with the Fair Work Commission within 21 calendar days of your dismissal taking effect.
- Gather evidence: your employment contract, pay slips, any performance reviews, emails, and written warnings.
- Lodge a Form F2 online at fwc.gov.au. There is a small filing fee (currently around $85).
- Attend the conciliation conference — most cases settle at this stage without a hearing.
What should you NOT do?
- Don't miss the 21-day deadline — extensions are granted only in exceptional circumstances.
- Don't sign a release or waiver without getting legal advice first.
- Don't badmouth your former employer online — it can hurt your case.
How New South Wales differs from federal law
Unfair dismissal claims for most NSW workers are heard by the Fair Work Commission under Part 3-2 of the Fair Work Act 2009 (Cth). NSW state-system employees (NSW Government and local councils) have a separate unfair dismissal path through the NSW Industrial Relations Commission.
- Under the Fair Work Act, employees of small businesses (fewer than 15 employees) are subject to the Small Business Fair Dismissal Code — they must have worked at least 12 months before claiming unfair dismissal, compared to 6 months for larger employers.
- NSW Government employees can bring unfair dismissal claims under section 84 of the Industrial Relations Act 1996 (NSW). The NSW IRC can order reinstatement or compensation.
- NSW also has general protections claims through the Fair Work Act (no minimum service period required) where dismissal relates to a workplace right, discrimination, or temporary absence due to illness.
- The NSW Government Sector Employment Act 2013 sets additional rules for termination of NSW public servants, including misconduct procedures overseen by the Public Service Commission.
Additional Steps in New South Wales
National-system employees must lodge unfair dismissal applications with the Fair Work Commission within 21 days of dismissal. NSW state-system employees lodge with the NSW Industrial Relations Commission. Free legal help is available through LawAccess NSW (1300 888 529).
Relevant Law: Fair Work Act 2009 (Cth), Part 3-2; Industrial Relations Act 1996 (NSW), s 84; Government Sector Employment Act 2013 (NSW)
Common Questions
When does unfair dismissal apply?
You have been dismissed (fired, contract not renewed, or forced to resign).You completed the minimum employment period (6 or 12 months).You earn under the high-income threshold or are covered by an award/agreement.You are not a genuine casual without a reasonable expectation of ongoing work.
What should I do if I think I was unfairly dismissed from my job in Australia?
Act fast — you must lodge your application with the Fair Work Commission within 21 calendar days of your dismissal taking effect.Gather evidence: your employment contract, pay slips, any performance reviews, emails, and written warnings.Lodge a Form F2 online at fwc.gov.au. There is a small filing fee (currently around $85).Attend the conciliation conference — most cases settle at this stage without a hearing.
What mistakes should I avoid with unfair dismissal?
Don't miss the 21-day deadline — extensions are granted only in exceptional circumstances.Don't sign a release or waiver without getting legal advice first.Don't badmouth your former employer online — it can hurt your case.
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