Unfair dismissal laws under the Fair Work Act 2009 (Cth) protect many Australian employees from being terminated in a way that is harsh, unjust, or unreasonable.
But not every dismissal falls into this category. Some employees and circumstances are specifically excluded from unfair dismissal protections.
This article by our Brisbane employment lawyers explains the main exclusions, with examples and answers to common questions.
Key Takeaways
Not all dismissals are considered unfair dismissal under the Fair Work Act.
Employees must meet minimum employment periods and coverage criteria.
High-income earners, certain casual or fixed-term employees, and those dismissed for genuine redundancy or serious misconduct may be excluded.
Small business rules and procedural requirements also affect eligibility for unfair dismissal claims.
Understanding these exclusions is vital for both employers and employees to manage workplace rights and obligations effectively.
Unfair Dismissal Protections
The unfair dismissal protections are primarily contained in section 382 of the Fair Work Act 2009 (Cth).
A person is protected from unfair dismissal if, at the time of dismissal:
- they are an employee who has completed at least the minimum employment period (6 months for most businesses, 12 months for small businesses); and
- one or more of these applies:
- a modern award covers them; or
- an enterprise agreement applies; or
- their earnings are below the high income threshold.
If these criteria are not met, an employee may not be protected from unfair dismissal- even if they believe their termination was unfair.
Remember: Casuals are only eligible if the casual work was regular and systematic and there was a reasonable expectation of continuation (this affects both protection and calculation of the minimum period).
Learn more about Fair Work Act obligations for employers in our guide.
What is Not Unfair Dismissal in Australia?
While unfair dismissal laws offer broad protection, the Fair Work Act also sets out clear situations where an employee cannot make a claim – the key categories are outlined below.
1. Employees Who Have Not Met the Minimum Employment Period
Employees cannot make an unfair dismissal claim if they have not worked the required minimum period.
The minimum employment periods are:
- 6 months for non-small-business employers; and
- 12 months for small businesses (i.e. fewer than 15 employees by headcount).
For example, an employee dismissed after 3 months in a medium-sized business will generally not be eligible.
Legal Tip: Being on “probation” doesn’t itself exclude protection, what matters is whether the statutory minimum period has been completed.
If you are searching for trusted employment law firms Brisbane businesses and employees rely on, Prosper Law is here to help.
2. High-Income Earners
Employees earning above the high income threshold (currently over $183,100 per year (from 1 July 2025), indexed annually) and not covered by a modern award or enterprise agreement are excluded from unfair dismissal claims.
Example: A senior executive on a $250,000 salary with no award or enterprise agreement coverage cannot pursue an unfair dismissal claim.
3. Genuine Redundancy
A dismissal due to a genuine redundancy is not considered unfair dismissal. For a redundancy to be genuine:
The job must no longer be required.
The employer must comply with any applicable consultation requirements.
Redeployment within the business or associated entities must not be reasonable.
Employers engaging contractors or labou hire staff should also refer to High Court Redefines Genuine Redundancy in Australia to understand the broader redeployment test under the Fair Work Act.
4. Fixed-Term and Task-Specific Employment
Where employment ends at the conclusion of a fixed-term contract, specific task, or seasonal engagement, the termination is not unfair dismissal.
Example: A fruit picker hired for a three-month harvest season cannot claim unfair dismissal when the season ends.
Caution: However, maximum-term (outer-limit) arrangements require care – depending on the facts, non-renewal can still amount to a termination at the employer’s initiative.
5. Employees Under Training Agreements
Where a training agreement applies, and the employment is limited to the training period, termination at the end of the agreement does not typically amount to unfair dismissal.
But it does not exclude an employee from filing an unfair dismissal claim if they otherwise meet section 382 of the FW Act, the FWC will still assess procedural fairness and context.
6. Serious Misconduct
Dismissal for serious misconduct (e.g. theft, fraud, assault, serious safety breaches, or refusing lawful instructions) is generally lawful and not unfair. The misconduct must be significant enough to make ongoing employment unreasonable.
7. Employees Without Coverage
Employees who do not fall under a modern award, enterprise agreement, or are above the income threshold are excluded from protections.
Employers facing an unfair dismissal case can read more in our article on Defending Unfair Dismissal: A Guide for Employers.
Procedural and Jurisdictional Exclusions
Before the Fair Work Commission (FWC) can assess whether a dismissal was unfair, it must deal with jurisdictional objections. These are issues that can stop a claim from proceeding.
Procedural and Jurisdictional Exclusions
Employers may argue the FWC has no jurisdiction because:
the employee did not complete the minimum employment period (6 or 12 months)
the claim was lodged outside the 21-day time limit
the employee is not covered under section 382 of the Fair Work Act (i.e. award/EA coverage or below HIT)
the dismissal was a genuine redundancy
If upheld, the case ends without a hearing on fairness.
Small Business Fair Dismissal Code
Small businesses (fewer than 15 employees) may rely on the Small Business Fair Dismissal Code. It allows summary dismissal for serious misconduct, and for performance-based dismissals it requires a valid reason, a warning, and an opportunity to improve. If followed, the dismissal cannot be found unfair.
Frequently Asked Questions
Is being on probation an automatic exclusion?
No, probation periods periods can vary. What matters is whether the employee has completed the statutory minimum employment period (6 or 12 months, depending on business size).
Can a casual employee claim unfair dismissal?
Yes. If their casual work was regular and systematic with a reasonable expectation of continuing employment and they meet other protection criteria.
Do high-income earners always miss out?
Not always! If they’re covered by an Modern Award or enterprise agreement, protection may still exist despite high earnings.
Reach out to Prosper Law today to find out more.
What makes a redundancy “genuine”?
A redundancy is genuine, if:
- the role is no longer required
- there was proper consultation
- there was no reasonable redeployment (including associated entities)
Failure by the employer on any of these limbs may mean that the redundancy was not genuine.
Does serious misconduct block an unfair dismissal claim?
No. Serious misconduct can justify summary dismissal (ending employment without notice) and it will often provide a valid reason for termination. It may also reduce or even eliminate compensation if a claim succeeds.
However, if the employee is otherwise protected under the Fair Work Act, they can still bring an unfair dismissal application, and the Commission will consider whether the dismissal process was fair.
For a detailed examination of when legal costs may be ordered under the Fair Work Act, including recent case trends, see our article ‘Awarding Legal Costs in Fair Work Claims’.
About the Author
Farrah Motley
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