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Understanding whether you’re eligible to make a claim for unfair dismissal is important, and there are key facts that you’ll need to establish. Slater and Gordon’s Online Unfair Dismissal Lawyer service will help you navigate these complex questions.

  • Your salary

    What is included in the earnings limit?

    It is necessary to look at the specific facts around your salary package to determine whether you are over the "earnings limit" for using the Fair Work Commission's Unfair Dismissal provisions. But as a general rule, here are some of the things on top of your cash salary that may be included in the limit:

    • Additional contributions from your employer to superannuation – for example, if your employer provided 12% super, rather than the required 9.25%, then the additional 2.75% would count towards the earnings limit
    • Private use of a motor vehicle: if you are provided with a motor vehicle as part of your employment, than any private use (for example on weekends) of that vehicle may be counted as earnings by the Fair Work Commission
    • The monetary value of some benefits you might receive, such as car parking

    Some of the things that aren't included:

    • Compulsory superannuation payments that are paid under the Superannuation Guarantee legislation
    • Bonuses that aren't guaranteed
    • Overtime that isn't guaranteed
    • Reimbursements of work expenses
  • How long you’ve worked for your employer

    How long do I need to have been employed in order to qualify?

    The answer to this depends on the size of your employer.

    You need to have been employed continuously for at least:

    • One year for employees of small business employers; or
    • Six months continuous service for all other employees.

    Continuous service means a period of unbroken service – and so periods when you have an unauthorised absence, and some kinds of unpaid leave, may not count towards continuous service.

    The continuous service period starts on the day your employment commences, and finishes either on the date you were notified of your dismissal, or immediately before the dismissal (whichever is the earlier). Sometimes, service with an old employer whose business transferred to a new employer will count towards continuous service with the new employer.

  • Type of employee

    I had a fixed term contract with my former employer and it wasn't renewed. Can I claim for unfair dismissal?

    If your fixed-term contract ends and doesn’t get extended, in most cases you won’t be able to make an unfair dismissal claim with the Fair Work Commission.

    Slater and Gordon’s Online Unfair Dismissal Lawyer isn’t the most suitable service for you in these circumstances. Slater and Gordon’s Online Unfair Dismissal Service is a limited, fixed price service and is not suited to assessing all employment or dismissal circumstances.

    We recommend you seek alternative legal advice or you may want to visit the website of the Fair Work Ombudsman, an independent Federal Government agency that provides a wide range of information about rights and obligations relating to employment

    I’ve been a casual employee but was dismissed. Can I still claim for unfair dismissal?

    Yes, in some circumstances.

    As a casual employee, to be eligible to make a claim, you must have had “regular and systematic” employment in the past, AND have a “reasonable expectation” that you’ll have “regular and systematic” employment in the future. This will be very much a case-by-case situation.

    For example, if you have had regular shifts every week or month for the last 2 years, you’ve probably got a reasonable belief that you’ll keep getting those kinds of shifts in the future. But if you’ve had 1 shift only in the last 6 months, then it’s likely to be harder to argue you would expect to have regular employment in the future.

    I wasn’t an employee, I was a contractor. Can I still claim for unfair dismissal?

    Independent contractors are not eligible to file a claim for unfair dismissal with the Fair Work Commission. The basic rule is that you need to be an employee in order to file for unfair dismissal. The only exception is for outworkers in the textile, clothing and footwear industry.

    However, sometimes an employer will try and call you an independent contractor when you are actually regarded legally as an employee. Understanding the facts around your relationship with your employer turns out to be pretty important.

    There are a number of tests that the Fair Work Commission can apply to determine whether you were an employee or an independent contractor. These tests will include issues like:

    • Did you work for other firms at the time, as well as your ‘employer’, or at the very least, were you entitled to work with other firms?
    • Was income tax deducted by the employer from your remuneration, or were you responsible for your own tax affairs?
    • Were you paid by regular wage or salary payments, or did you provide invoices after you’d completed tasks?
    • Did the employer provide you with paid holidays and sick leave?

    This list isn’t exhaustive, and often there is no clear answer.

  • The size of your employer

    I worked for a small business – does this affect my chances of claiming unfair dismissal?

    Yes – smaller business employers have different obligations compared to bigger businesses when it comes to unfair dismissal. The theory is that smaller businesses are less likely to have professional human resources advice and support, and therefore should be allowed more flexibility when it comes to dismissing employees.

    So if your employer is a small business employer, the rules around unfair dismissal are different. For example:

    • You will need to have worked for the employer for one year, rather than 6 months, to make a claim
    • Your dismissal will be considered fair provided that your employer follows the "small business dismissal code"
    • The size of your employer, and whether or not they have a dedicated human resources department or other expertise, will count towards whether the process used to dismiss you was fair or not.

    What is a small business employer?

    A 'small business employer' employs less than 15 employees. All employees of your employer and any associated companies are counted, including you and anyone else dismissed at the same time as you, except for casual employees without regular and systematic employment.

    What is the Small Business Dismissal Code?

    The Small Business Dismissal Code applies to small business employers. It makes it easier for a small business to dismiss an employee fairly.

    The Small Business Dismissal Code provides that it is fair to dismiss an employee without warnings or notice if the employer reasonably believes the employee has committed serious misconduct. If the employer reports the conduct to the police on reasonable grounds, this will be enough to justify the dismissal.

    For other dismissals, the employee must be given a reason for the dismissal which is valid, must have received a warning and a chance to fix the problem, and must be allowed a (non-lawyer) representative in any meetings about the dismissal.

  • Time limit

    Is there a time limit on when I can lodge a claim?

    An application for unfair dismissal MUST be made ‘within 21 days after the dismissal taking effect’. The 21 days does NOT include the date that your dismissal took effect – so day one of the time limit starts the day AFTER your dismissal took effect.

    If the final day of the 21 day period is a weekend day, or a national public holiday, then you will have until the next business day to lodge your claim. Remember that weekend days or national public holidays DURING the 21 day period don't extend your time limit.

    The Fair Work Commission will sometimes accept a late claim, but only after a hearing about your reason for being late, how strong your claim is and the impact of your late lodgement on your former employer.

    Slater and Gordon’s Online Unfair Dismissal Lawyer service also has a time limit. As it can take a few days to draft and finalise your claim, we ask you to submit your details to us no later than 14 days from the date of your dismissal. Slater and Gordon's Online Unfair Dismissal Lawyer includes a calendar tool that will help determine whether you are inside our time limit.

    Of course you can still proceed after 14 days (and before 21 days), but you may wish to seek alternative legal assistance or do it yourself via the Fair Work Commission website at:

    Fair Work Commission

    If you’ve been given notice of a dismissal, but it doesn’t become effective until a given date in the future, then you will have 21 days from the date it becomes effective.

  • The state you work in

    What employees are eligible to file a claim for unfair dismissal?

    The basic rule is that employees have to be covered by the national workplace relations system in order to be eligible to file for unfair dismissal.

    The national workplace relations system covers:

    • In Victoria, the Northern Territory and the Australian Capital Territory: all employees
    • In New South Wales, Queensland and South Australia: employees of private enterprise
    • In Tasmania: employees of private enterprise and local government
    • In Western Australia: employees of constitutional corporations (including Pty Ltd companies), this may include some local governments
    • Employees of the Commonwealth or a Commonwealth authority
    • Waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce

    What is a non-constitutional corporation in Western Australia?

    Non-constitutional corporations include:

    • sole traders
    • partnerships
    • some not-for-profit organisations in industries such as health, education, local government and community services
    • certain State government public sector employers, and
    • corporations whose main activity is not trading or financial

    If you are working for any employer in Western Australia that fits this definition, it’s possible that you won’t be eligible to file a claim for unfair dismissal with the Fair Work Commission.

    Does the state I work in affect whether I'm eligible?

    Yes, there are some differences between states, generally about whether State government and local government employees are eligible to apply to the Fair Work Commission for unfair dismissal.

    Employees have to be covered by the national workplace relations laws to be eligible to file for unfair dismissal. The basic situation is that the national workplace relations system covers:

    • In Victoria, the Northern Territory and the Australian Capital Territory — almost all employees
    • In New South Wales, Queensland and South Australia — employees of private enterprise, but not state or local government employees
    • In Tasmania — employees of private enterprise and local government
    • In Western Australia — employees of constitutional corporations (including Pty Ltd companies), which may include some local governments
    • Employees of the Commonwealth or a Commonwealth authority
    • Waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce

    Some of the key exclusions by state (in other words, employees who CAN’T apply to the Fair Work Commission for unfair dismissal) include:

    • Victoria: police officers and some senior state public sector employees
    • Queensland: state public sector employees and local government employees
    • Western Australia: state public sector employees
    • Tasmania: state public sector employees
    • NSW: state public sector employees and local government employees
    • South Australia: state public sector employees and local government employees
    • Northern Territory: police officers.

    Just because these kinds of employees aren’t able to apply to the Fair Work Commission doesn’t mean they don’t have options if they think they’ve been unfairly dismissed. Some states that “exclude” some employees have industrial relations commissions of their own. 

    Are local government employees eligible to claim for unfair dismissal?

    If you worked for a local government in Victoria, Tasmania, the ACT or the Northern Territory, then you are able to file a claim for unfair dismissal with the Fair Work Commission.

    Most local government employees in New South Wales, Queensland and South Australia, and many local government employees in Western Australia aren’t eligible to file for unfair dismissal in the Fair Work Commission.

    If you think you may be eligible, we recommend you seek alternative legal advice or proceed directly via the Fair Work Commission website, Fair Work Commission where you can lodge a claim using a form on their site.

Online Unfair Dismissal Tool

Use our online tool to determine if you are eligible for an unfair dismissal claim with Slater and Gordon.

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