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Linkedin Twitter Facebook. Disciplinary and grievance procedures Appealing a disciplinary or grievance outcome Making a claim to an employment tribunal. Did you get the information you need from this page? Yes No. The right to complain to a tribunal about unfair dismissal is also not available to: Self-employed people. Those who are not employees, eg casual workers, independent contractors or freelance agents. Members of the armed forces. Individuals working under an illegal contract, eg a barman who is under the age of 18 or employees in receipt of untaxed monies.
Employees covered by a dismissal procedure agreement that has been exempted from the unfair dismissal provisions by legislation. This is a rarely exercised legal provision. Employees taking part in unofficial industrial action unless the dismissal is for certain specified reasons, eg taking family leave or making a protected disclosure.
For more information, see the page in this guide on dismissals relating to industrial action. The police although police staff may make unfair dismissal claims where the dismissal relates to health and safety or the making of a protected disclosure.
Those employed as a master - or as a member of the crew - of a fishing vessel where the individual is paid only by a share in the profits or gross earnings of the vessel. Employees who have reached a settlement with their employer via a 'compromise agreement'. This is an agreement reached, with the benefit of a relevant independent advisor who has professional indemnity insurance, in which the employee waives their right to make a complaint in relation to the dispute to which the settlement relates.
You can make your application by email, fax, post, electronic lodgment or by telephone. The Fair Work Commission will only allow a late application if it is satisfied that there were exceptional circumstances that led to it being lodged out of time.
If you are nearing the 21 day timeframe and are having difficulties lodging your application in time, please call the Commission on Note that the Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application.
For the purposes of unfair dismissal, the Fair Work Act provides that a person has not been dismissed if:. Related legislation — Section 2 of the Fair Work Act — meaning of dismissed. For the purposes of unfair dismissal, the Fair Work Act provides that a person has not been dismissed if the person resigned from his or her employment. A person's dismissal was a case of genuine redundancy if the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.
If this is the case, change your answer to this question and continue with the quiz. The following employees in New South Wales , Queensland and South Australia are not covered by the national workplace relations system:. This means that they are not eligible for an unfair dismissal remedy from the Fair Work Commission.
These 3 states have their own state laws and tribunals that deal with unfair dismissal for the employees listed above. State public sector employees in Tasmania are not covered by the national workplace relations system. This means that they are not eligible to make an unfair dismissal application at the Fair Work Commission. Contact details for the Tasmanian Industrial Relations Commission can be found on the Related sites page. The following employees in Western Australia are not covered by the national workplace relations system:.
Western Australia has its own state laws and industrial relations commission that deals with unfair dismissal for the employees listed above. There is no easy way to determine this. You can ask the council to tell you whether they fall under Western Australian state laws or national laws. If you cannot get an answer, you may want to consider seeking independent legal advice.
You can ask the council or organisation to tell you whether they fall under Western Australian state laws or national laws. Casual employees who do not work on a regular and systematic basis are not eligible to make an unfair dismissal application at the Fair Work Commission.
Full-time employees are entitled to all of the conditions of the National Employment Standards including maximum number of hours of work per week, paid annual and personal leave, public holidays, and notice when they lose their job. Other conditions of employment will come from any award or agreement that applies. Part-time employees work an average of less than 38 hours per week. They are usually hired on an ongoing basis and work the same set of hours.
Part-time employees are entitled to the same things as full-time employees, but on a pro rata basis, which means that it's based on the number of hours they work. Casual employees are paid based on the number of hours they work. They usually aren't guaranteed a certain number of hours of work per week, but can work regular hours. Casuals are paid a higher rate of pay, called a casual loading, instead of receiving some of the benefits that full-time and part-time employees get.
For example, casuals don't usually get paid annual leave or paid sick leave. There is no definition of regular and systematic work in the Fair Work Act , but a clear pattern or roster of hours can be strong evidence of regular and systematic employment.
There are no set minimum weekly hours or set minimum number of shifts. Include yourself the employee who has been dismissed and any other employee dismissed at the same time. An employee who works for a business with 15 or more employees must have worked for the business for at least 6 months at the time they were dismissed in order to be eligible to make an unfair dismissal application.
An employee may be eligible for a remedy under the national unfair dismissal laws if they have completed the minimum employment period of either 6 months or 1 year, depending on the size of the business. The period of employment starts on the date employment commences. The period finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier. Go to the Fair Work Commission's Unfair dismissals benchbook where you can find case law about:.
Continuous service is an unbroken period of employment. Things that may break a period of employment include:. An employee who works for a small business that is, a business with fewer than 15 employees must have worked for the business for at least one year at the time they were dismissed in order to be eligible to make an unfair dismissal application.
Based on the answers you have given, it appears that you may be eligible for a remedy under the national unfair dismissal laws. The Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application.
There are a range of legal and other advisory services available across Australia that may be able to help you decide. Find out more by visiting Where to get legal advice. Earnings is defined in section of the Fair Work Act Contact details can be found on the Contact us page. If you earn above the high income threshold, and you were not covered by a modern award or an enterprise agreement, you are not eligible to make an application for unfair dismissal.
The Fair Work Act provides that an employee is not protected from unfair dismissal if:. Related legislation — Section of the Fair Work Act — When a person is protected from unfair dismissal. If you would like to pursue the matter on other grounds for example, if your employer has not paid you on termination according to your contract, or if you think you were dismissed for a discriminatory reason you may like to seek independent legal advice to find out what other options may be available to you.
A modern award is a legal document that sets out minimum wages and conditions for an industry or occupation. Awards cover things like rates of pay, overtime, penalty rates and allowances.
The conditions in awards apply on top of the minimum conditions in the National Employment Standards. An enterprise agreement is a legal document that sets out the conditions of employment between a group of employees and their employer.
Enterprise agreements can be made by an employer with a group of employees, or by more than one employer with groups of employees. In some cases, enterprise agreements can be made by an employer and a union for a new enterprise before any employees start working for the business. If you're not sure whether you were covered by an award or had an enterprise agreement that applied to you, the Fair Work Ombudsman can help you find out.
More information can be found on the website at www. Please note: If you would like a response to your question, please contact us or lodge a complaint.
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