Determining your unfair dismissal eligibility, and whether you are eligible to make an unfair dismissal claim, can be confusing. You must meet all 5 of the following criteria to make an unfair dismissal claim:
1. You must be an employee covered by the National Workplace Relations System.
The national workplace relations system covers:
Victoria, the Northern Territory and the Australian Capital Territory — all employees.
New South Wales, Queensland, Western Australia and South Australia — employees of all private enterprise.
Tasmania — employees of private enterprise and local government.
Employees of the Commonwealth or a Commonwealth authority.
If you are an independent contractor then unfair dismissal laws do not apply.
2. You must be dismissed.
This may seem obvious but not all circumstances involving the termination of an employment relationship amount to a dismissal. For example, the end of a fixed term contract is not a dismissal. Similarly, the end of a training agreement is not a dismissal.
“Dismissed” is defined in the Fair Work Act as being when:
your employment is terminated at the initiative of the employer; or
your employer has forced you to resign because of their conduct
3. You must have been employed for the minimum employment period.
The minimal period of employment differs between small business employers and other employers. A small business, for the purpose of unfair dismissals is a business with fewer than 15 employees based on a simple head count.
If your employer is a small business employer then you must have been employed for 12 months prior to your dismissal. If your employer is not a small business employer you must have been employed for 6 months prior to your dismissal.
The head count involves counting all employees employed by the employer at the time of dismissal. This includes full time, part time and casual employees. In most circumstances it will also include employees of associated entities.
4. Your annual rate of earnings must be less than high income threshold or a modern award or enterprise bargaining agreement must govern your employment.
The high income threshold is $142,00. You are not covered by unfair dismissal laws if you earn above this amount. However, if a modern award or enterprise bargaining agreement covers your employment then the high income threshold does not apply. The high income threshold in indexed annually.
Most assessments of the high income threshold are straight forward. If your income is comprised of various components then this article will be useful.
5. Your dismissal must have been within the last 21 days.
It is critical that you lodge an unfair dismissal application within 21 days of your dismissal becoming effective. In exceptional circumstances the Fair Work Commission may extend this deadline but this is rare.
Your dismissal is “effective” on your last day of work. That is, you dismissal takes effect on the day that you physically finish working at the place of employment.
If you need help determining your unfair dismissal eligibility, free call us now on 1800 739 795.