An unfair dismissal claim goes to the Fair Work Commission within 21 days of the dismissal taking effect, and that deadline is close to absolute. Visa status is irrelevant to eligibility.
Who is actually eligible to claim?
Anyone who completed the minimum employment period, which is six months at a business with 15 or more employees and twelve months at a small business with fewer than 15. That threshold rules out a large proportion of working holiday makers before the dismissal itself is considered.
Casual employees are not excluded. A casual employed on a regular and systematic basis with a reasonable expectation of continuing work can claim, and the test looks at the actual pattern of shifts rather than the word casual on the contract. Someone rostered four nights a week for eight months is in a stronger position than the paperwork suggests.
- 15 or more employees: six months minimum service
- Fewer than 15 employees: twelve months minimum service
- Casual with a regular, systematic pattern: counts towards the period
- Earnings must be under the high income threshold, which almost every working holiday maker is
What makes a dismissal unfair?
That it was harsh, unjust or unreasonable, which covers both the reason and the process. A valid reason handled badly can still be unfair: being sacked for something you did is not automatically fair if you were never told about it and never given a chance to respond.
Termination for performance issues that were never raised. Dismissal shortly after a safety complaint or a workers compensation claim. A redundancy that turns out to have been a replacement. And, for small businesses, a dismissal that does not follow the Small Business Fair Dismissal Code, which sets out a shorter but still real process.
What if you were there less than six months?
You cannot make a standard unfair dismissal claim, but the alternative route is often stronger. A General Protections claim covers dismissal for a prohibited reason, and no minimum employment period applies.
Prohibited reasons are wider than most people expect: exercising a workplace right, making a complaint or enquiry about your employment, temporary absence through illness or injury, or a protected characteristic such as race, sex, age or pregnancy. Being dismissed the week after you asked why your super had not been paid is the shape of a General Protections case rather than an unfair dismissal one. Discrimination law adds a parallel route with no service requirement either.
How hard is the 21 day deadline?
Hard. An application must reach the Fair Work Commission within 21 calendar days of the dismissal taking effect, and extensions are granted only in genuinely exceptional circumstances. Not knowing about the deadline is not exceptional.
Dismissal often happens in the final weeks of a stay, with the flight already booked. The claim can be pursued from overseas once lodged, so the priority is getting the application in before departure rather than resolving anything first. General Protections claims involving dismissal run to the same 21 day limit.
What can you actually get?
Compensation, in most cases, capped at 26 weeks of pay and at half the high income threshold. Reinstatement is the primary remedy in the legislation, but it is rarely what a working holiday maker wants and rarely practical near the end of a visa.
Most matters settle at conciliation rather than at a hearing, a telephone conference run by the Commission early in the process. That changes what preparation is useful: a clear account of what happened, dates, and any documents are more valuable than legal argument.
What are you owed regardless of the claim?
Everything that had accrued by the date you finished, separate from whether the dismissal was fair. It is the part most often left behind.
- All wages for hours worked up to the final day
- Accrued annual leave, for permanent employees
- Payment in lieu of notice, where notice was required and not given
- Any unpaid super, which is pursued through the ATO rather than Fair Work
These are recoverable whether or not you have a dismissal claim and whether or not you are still in the country. Our guide on an employer not paying correctly covers how the wage side is pursued.