Am I eligible to make an unfair dismissal application?
The Fair Work Act 2009 (Cth) only protects certain employees from unfair dismissal. To be eligible to make an unfair dismissal application:
- You must be a national system employee (382(a))You are a national system employee if you are employed by a corporation/ company or the Commonwealth sections 13 and section 14. Eligibility requirements differ between states. In Victoria all employees are national system employees.
- You must have been employed for the minimum employment period applicable to your employment. This depends on whether your employer is a small business employer section 382 > definition directs to (section 383);
- if your employer is a small business employer you must have been employed for one year prior to your dismissal (section 383(b))
- if your employer is not a small business employer you must have been employed for 6 months prior to your dismissal (section 383(a))
- A modern award or enterprise bargaining agreement must govern your employment or your annual rate of earnings must be less than high income threshold (section 382(b))Whether your employment is governed by a modern award or enterprise bargaining agreement may be specified in your contract of employment. If you do not have a contract of employment, your employment is more likely to be governed by a modern award or enterprise bargaining agreement.
- Your employment may be governed by a modern award where your position, including duties and responsibilities, falls within one of the defined classifications under a modern award. A complete list of modern awards can be found on the Fair Work Commission website.
- Your employment is governed by an enterprise bargaining agreement where your employer has gained approval of the agreement from the Fair Work Commission, and your position, including duties and responsibilities, or place of work falls within the coverage of the agreement.
The current high income threshold is $136,700.The high income threshold is indexed annually and is updated on the Fair Work Commission website.
The indexing calculation can be found in clause 2.13 of the Fair Work Regulations 2009 which commences at $100,000 from the base year 2009.
- You must have been dismissed from your employment (section 394)Dismissal from employment has defined meanings and negative meanings under the Fair Work Act 2009 (Cth) (section 386).You have been dismissed from your employment if:
- your employment was terminated at your employer’s initiative (section 386(1)(a)); or
- you resigned from your employment because of the conduct or course of conduct of your employer (section 386(1)(b))
- You should provide the date of your dismissal and any notice received in questions 1.2 and 1.3 of the FWC Unfair Dismissal Form F2. You should state the details of your dismissal including how your dismissal occurred in questions 3.2 of the FWC Unfair Dismissal Form F2.
However a dismissal does not include where (section 386(2)):
- your fixed-term contract of employment has ended;
- you have a training contract arrangement that has ended;
If you have been demoted, you may be able to make a FWC general protections claim.
You only have 21 days from the date of termination of your employment to lodge an unfair dismissal or general protections application with the Fair Work Commission (FWC).