Unfair dismissal Australia: why 6 or 12 months of service and a 21-day clock decide your claim

To apply for unfair dismissal in Australia you generally need 6 months with your employer (12 months if it is a small business with fewer than 15 employees), and you must apply to the Fair Work Commission within 21 days of the dismissal. The second number is the one people miss. From a recruiter's chair, the pattern is familiar: workers lose their job, spend three weeks hoping for a phone call, and find the window has closed.

The two tests: length of service and the 21-day deadline

Fair Work's unfair dismissal page sets out both tests in one sentence, and both have to be met. The table below puts them side by side.

Notice the third row. A small employer that follows the Code is protected even if the worker is upset about how it went. That is why the size of the business matters as much as the number of months you have worked.

How to tell whether your employer is a small business

The fact that counts is the headcount: fewer than 15 employees. If you work for a cafe, a workshop or a family-run company, ask yourself how many people are on the roster. If you are not sure, the Fair Work Ombudsman can help you work it out before you decide anything.

This matters when you are weighing up a job offer too. A longer qualifying period is not a reason to avoid a small employer, but it is worth knowing that the safety net is different. Our guide to the pay floor, award and safety rules behind every job offer covers the other protections that apply from day one.

What to do in the first week after a dismissal

The 21 days run from the dismissal, so the first week decides how much room you have left. Follow these steps in order.

1. Write down the date you were dismissed, who told you and how (in person, text, email or letter). Keep the message itself.
2. Count your time with the employer from your first day and compare it with the 6 or 12 month test above.
3. Ask yourself how many employees the business has. Fewer than 15 means it is a small business.
4. Check your notice. Under the National Employment Standards, notice must be written, and it can be worked or paid out. See the notice table below.
5. Read the Fair Work unfair dismissal guidance and decide whether to apply before day 21 arrives.
6. Collect your documents: contract, pay slips, messages and any warnings you received.

None of this is legal advice. If your case is close to the deadline or complicated, speak to Fair Work or a lawyer quickly rather than waiting.

Notice of termination is a separate entitlement

Many workers confuse notice with an unfair dismissal claim. They are different. Minimum notice of termination under the NES depends on continuous service, as the Fair Work dismissal page explains:

Employees over 45 years old get an extra week if they have at least 2 years of continuous service. Our post on notice periods in Australia goes through the table with examples, and the one on redundancy pay covers what a redundancy adds. Most small employers do not have to pay redundancy pay, and people with less than 12 months of service usually do not get it, but they may still be entitled to notice.

Visa holders: the same rights, one extra worry

Many of the workers we speak to are on an employer-sponsored visa, and the first fear is the visa. Fair Work says visa holders and migrant workers have the same workplace rights and protections as other employees, including pay, leave, protection from discrimination and final pay. It also says an employer cannot cancel a worker's visa: only Home Affairs can grant, refuse or cancel visas.

What a dismissal means for your visa conditions is a migration question, not a workplace one. Talynx is a recruitment business, not a migration agent, so we point people to registered migration agents (MARA) in Australia. For the workplace side, read visa holder workplace rights in Australia. If English is not your first language, call the Translating and Interpreting Service on 131 450 and ask them to call the Fair Work Ombudsman on 13 13 94.

Common mistakes

• Waiting for the employer to reverse the decision. The 21-day deadline keeps running while you wait.
• Counting the wrong months. The test is time worked for the employer. A long career in the industry does not count if you only joined the employer recently.
• Assuming a small business has no rules. It has a longer service test, and the Small Business Fair Dismissal Code is what makes a dismissal fair when it is followed.
• Mixing up notice and unfair dismissal. You can be owed notice even when you cannot apply for unfair dismissal.
• Not keeping evidence. A text message or letter on the day is worth more than your memory three weeks later.
• Treating a visa fear as a reason to stay silent. An employer cannot cancel your visa, so get accurate information first.

What recruiters ask when a job ended suddenly

If you were dismissed, expect a recruiter to ask what happened. A short, calm and factual answer works best: the dates, your role, what you did well and what you learned. Do not criticise the former employer. Having your documents ready also helps, because new employers check references and certificates. Our employee onboarding guide shows the paperwork you will be asked for on day one of the next job, and the guide to Australian workplace culture explains what employers expect from new arrivals.

When you update your CV after leaving a job, a clear layout helps your dates and duties stand out, and a tool such as Build AI CV can help you rebuild it. A profile on Talent Tabloid is another way to keep your work history in one place.

When you are ready to look again, browse current vacancies on Talynx for skilled workers in Australia and New Zealand, searchable by position, country and city, or open the senior cook and chef role in Dubbo to see how an ad lists duties. Candidates never pay Talynx a fee to apply or a placement fee,.

Frequently asked questions

How long do I have to apply for unfair dismissal in Australia?

Fair Work says you must apply to the Fair Work Commission within 21 days of the dismissal. The clock starts from the dismissal, not from the day you finally decide to act, so check the date on your termination letter or the day you were told.

Can I claim unfair dismissal after three months in a new job?

Not under the rule Fair Work publishes. The minimum is 6 months with the employer, or 12 months if it is a small business with fewer than 15 employees. Being dismissed earlier may still mean you are owed notice or final pay, so ask Fair Work about those.

Does a small business have to follow different rules?

Yes, in two ways. An employee needs 12 months of service instead of 6 to apply. And if a small business follows the Small Business Fair Dismissal Code when it dismisses someone, the dismissal is considered fair.

Do visa holders have the same dismissal rights as other employees?

Fair Work says visa holders and migrant workers have the same workplace rights and protections as all other employees. An employer cannot cancel your visa, because only Home Affairs can grant, refuse or cancel visas. For what a dismissal means for your visa, ask a registered migration agent.

Is notice of termination the same thing as unfair dismissal?

No. Notice is a minimum entitlement under the National Employment Standards, from 1 week to 4 weeks depending on your years of service. An unfair dismissal claim is a separate application to the Fair Work Commission with its own service tests and deadline.

Key takeaways

• You generally need 6 months with the employer, or 12 months at a small business with fewer than 15 employees.
• You must apply to the Fair Work Commission within 21 days of the dismissal.
• A small business that follows the Small Business Fair Dismissal Code is treated as having dismissed fairly.
• Notice (1 to 4 weeks, plus a week for some over-45s) is a separate entitlement.
• An employer cannot cancel your visa; ask a registered migration agent about visa effects.