Can a working holiday maker make an unfair dismissal claim in Australia?

If the dismissal qualifies, the Fair Work Commission can order reinstatement, compensation (up to 26 weeks of pay), or both. Claims must be lodged within 21 days of dismissal.

What counts as unfair dismissal?

Under the Fair Work Act, a dismissal is unfair if it was:

• Harsh, unjust, or unreasonable: the reason given was not valid, or the process was not fair
• Not consistent with the Small Business Fair Dismissal Code (for small employers)
• A genuine redundancy that was not handled properly

Common patterns of unfair dismissal include:

• Termination without warning for performance issues that were never raised
• Dismissal after raising safety concerns or workers compensation claims
• Dismissal based on discrimination (race, gender, age, pregnancy)
• Failure to follow a proper warning and improvement process
• Dismissal disguised as a "redundancy" when the role was actually filled by someone else

Who is eligible to make a claim?

Eligibility requires three things:

1. Minimum employment period completed: 6 months for businesses with 15 or more employees, 12 months for small businesses
2. Earnings below the high income threshold: most working holiday makers are well below this
3. Covered by an award, enterprise agreement, or earning under the high income threshold: nearly all working holiday makers are covered

Casual employees can also make unfair dismissal claims if they were employed on a regular and systematic basis for the minimum period. The regular and systematic test focuses on the pattern of shifts, not the casual classification on paper.

What protections apply during the minimum employment period?

Working holiday makers dismissed before completing the minimum employment period cannot make a standard unfair dismissal claim, but other protections still apply:

• General Protections claim: if the dismissal was because of a protected reason (raising a workplace right, making a complaint, discrimination), a claim can be made regardless of length of service
• Anti-discrimination law: state and federal anti-discrimination laws cover dismissals based on protected characteristics, with no minimum service period
• Wage and entitlements claims: any unpaid wages, leave, or super owed at the time of dismissal can be recovered separately through Fair Work or the ATO

The General Protections route is often more effective for working holiday makers because the minimum employment period does not apply.

What are the time limits?

The most important deadline is the 21-day rule. An unfair dismissal application must be lodged with the Fair Work Commission within 21 calendar days of the dismissal taking effect. The Commission can grant extensions in exceptional circumstances, but the extensions are rare.

General Protections claims have similar time limits and should also be lodged quickly.

For a working holiday maker about to leave Australia, the 21-day window can be a real problem. If a dismissal happens in your final weeks in the country, getting advice and lodging a claim before you fly out is the practical priority.

What can you recover?

If the Fair Work Commission finds the dismissal was unfair, it can order:

• Reinstatement to the job (rarely sought by working holiday makers near the end of their visa)
• Compensation up to 26 weeks of pay (capped at half the high income threshold)
• A combination of both

For most working holiday maker cases, the realistic outcome is compensation, often settled at conciliation before the matter goes to a full hearing.

What about the wage and entitlements side?

Whether or not the dismissal was unfair, you are entitled to:

• All wages owed up to the date of dismissal
• Any accrued annual leave (for permanent employees)
• Any unpaid super
• Payment in lieu of notice if the contract required notice and none was given

These entitlements are separate from any unfair dismissal claim and can be pursued through Fair Work or, for super, through the ATO. See our article on what to do if your employer is not paying you correctly for the wage side.

How does our service support dismissed workers?

The unfair dismissal process is handled by the Fair Work Commission and is best supported by specialist employment lawyers for the dismissal claim itself. Our team handles the tax and entitlements side that runs alongside any dismissal:

• Calculating unpaid wages, leave, and super owed at the date of dismissal
• Lodging your tax return for the year of dismissal, capturing the reduced income
• Pursuing unpaid super through the ATO if contributions are missing
• Coordinating DASP if you are leaving Australia after the dismissal

If you have been dismissed and are uncertain about the wider financial picture, get in touch with our team before you leave Australia.