Can you apply?

If you have been unfairly dismissed from work, you may be able to make an unfair dismissal application to the Fair Work Commission (the Commission). However, there are a number of restrictions (sometimes called 'jurisdictional limits') on who can apply. 

Before you apply, you should consider all the requirements you have to meet to make an unfair dismissal application.

If the Commission agrees that you have been unfairly dismissed, and no jurisdictional limits stop it from considering your application, it can order your employer to give you your job back (reinstatement) or pay you compensation.

If you are an employee working in NSW, you will be covered by national employment laws unless you are employed by the NSW government, a local council, or a NSW state government owned corporation.

Employees covered by national unfair dismissal laws include:

• employees of private enterprise in New South Wales, Queensland, South Australia or Tasmania
• employees of most companies in Western Australia
• all employees in Victoria, the Northern Territory or the Australian Capital Territory
• employees of the Australian (Commonwealth) Public Service ('APS').

You may not be covered by national unfair dismissal laws if you:

• are employed by a State government in New South Wales, Queensland, Western Australia, South Australia or Tasmania
• are employed by a local government in New South Wales, Queensland, Western Australia or South Australia
• are employed by a partnership or other unincorporated entity in Western Australia.

 If you are a public servant employed by a State or local government, you may still have rights under other laws. If you think you have been unfairly dismissed you should get legal advice.

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, download Checklist - Making an unfair dismissal application.

You must make an unfair dismissal application to the Fair Work Commission (the Commission) within 21 days of the date you were dismissed.

The day you were dismissed will usually be either the last day you worked or when you were told you were dismissed (whichever is later). If you are not sure when you were dismissed you should get legal advice urgently.

Out of time applications

In very limited circumstances the Commission may accept late applications. Some examples of when the Commission may accept late applications include where: 

• you were in hospital
• you had legal advice that was wrong
• you had a lawyer and the application was late because they made a mistake
• your application was late because of a mistake made by the Commission. 

Whether a late application will be accepted will depend on all the circumstances of your case. The Commission will also look at the strength of your case, as well as whether accepting the late application would cause unfairness to the employer.

You should not delay lodging your application simply because you haven't been able to get legal advice. It is possible to withdraw an unfair dismissal application. It is better to lodge it in time, rather than wait and then try to get an extension of time if your application is late.

  If you think you have been unfairly dismissed, but your dismissal was more than 21 days ago, you should get legal advice urgently.

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, download Checklist - Making an unfair dismissal application.

To make an unfair dismissal application you must be an employee. If you are an independent contractor you can’t make an application. However, even if you are called a 'contractor' you may actually be an employee. Whether someone is an employee or an independent contractor will depend on the circumstances of their case.

You need to be an employee to make an unfair dismissal application. If you are an independent contractor you cannot apply.

Whether a person is an employee or an independent contractor depends on a number of things. If your contract says you are a contractor, this doesn't necessarily mean that you are.

Someone who is an independent contractor might:

• supply their own tools or equipment
• do work when and how they want
• have their own workplace
• contract the work out to someone else
• spend some of their income on their own business expenses.

Someone who is an employee might:

• be paid a regular wage or salary
• have tax taken out of their pay by their employer
• have paid holidays and sick leave
• be told what hours they have to work, and where they have to work
• be supplied with tools and equipment
• fill out timesheets
• have superannuation contributions paid by their employer
• be covered for workers compensation by their employer.

Employers can't attempt to avoid (contract out of) the unfair dismissal protections. So an employer can’t:

• tell a person who they intend to treat as an employee that they will be working as an independent contractor
• sack an employee and rehire them as an independent contractor to do the same work
• make a false statement to influence an employee to enter into a contract to do work that is the same as the work they were previously employed to do.

If you are not sure if you are an employee or a contractor, you should get legal advice​

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, download Checklist - Making an unfair dismissal application.

It is possible to make an unfair dismissal application if you do your work on a labour hire basis. However, the employer that you list on the application form will usually be the labour-hire company (not the company where you actually performed your work). 

It is important to put the name of the right employer on your application form. You should find this name on your payslips, letter of offer or contract of employment. This is very complex and if you are in this situation you should get legal advice.

Casual employees are usually not able to make unfair dismissal applications. However, if you are a casual employee who works regular hours, you may still be able to apply.

A casual employee is different to a permanent employee. Permanent employees can work either full time or part time. Casual employees usually work different hours and days each week. If you are not sure whether you are a casual employee you should check your contract, letter of appointment and pay slips. If you are still not sure, get legal advice.

Not all casual employees can make an unfair dismissal application. Whether a casual employee can make an application will depend on the hours they worked and the hours they expected to work in the future.

If you were employed as a casual, but: 

• you worked on a 'regular and systematic basis', and
• you believed that you would continue to be given casual work (and it was reasonable for you to believe this),
• you may still be able to make an application.

A 'regular and systematic basis' could include: 

• a set number of shifts per week, fortnight or month
• a set number of hours per week, fortnight or month
• a regular pattern of days, shifts or hours.

For example: 

• a person who is asked to work whenever any other employee is off sick is not working on a regular and systematic basis
• a person who works on the same days each week, even if it is for a different number of hours each time, may be working on a regular and systematic basis
• a person who works the same number of hours each week but on different days may be working on a regular and systematic basis.

If you are not sure whether you are a casual that works on a regular and systematic basis, you should get legal advice. 

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, download Checklist - Making an unfair dismissal application.

You need to have been employed for a certain amount of time before you can make an unfair dismissal application. This is called the 'minimum employment period'.  

How long you will need to have been employed will depend on the size of your employer's business.

If your employer has:

• 15 or more employees when you are dismissed, you need to have worked for them for at least six months 
• less than 15 employees when you are dismissed, you need to have worked for them for at least one year.

An employer with less than 15 employees is called a 'small business'.

Casual employees are not counted in the headcount of employees, unless they are employed on a regular and systematic basis and have a reasonable expectation that they will continue to be employed. A 'regular and systematic basis' could include:

• a set number of shifts per week, fortnight or month 
• a set number of hours per week, fortnight or month
• a regular pattern of days, shifts or hours.

The length of time you worked needs to have been continuous. You still have continuous service if:

• you take leave (for example annual leave or maternity leave) 
• you are promoted or moved to another position with your employer
• you switch between full time and part time employment (for example if you reduce your hours because of family responsibilities).

If your employer changed because of a sale of business, the periods of employment for each employer will usually be one continuous period of employment (unless you were told this wouldn't be the case when the business was sold).

A probationary period of employment does not affect your ability to make an unfair dismissal application to the Commission. You can still apply if you are on probation, as long as you have completed the minimum employment period that applies to you. 

If you are not sure whether your employer is a small business, or how long you have been employed, you should get legal advice​.

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, download Checklist - Making an unfair dismissal application.

If you earn over a certain amount, you may not be able to make an unfair dismissal application. This is known as the 'high-income threshold'.  

The high-income threshold is $167,500 (as at 1 July 2023). You can check what the current high-income threshold is on the Fair Work Commis​sion website.  

You can’t make an application if you earn more than the high-income threshold, unless:

• you are covered by a modern award, or
• you are covered by an enterprise agreement.

A modern award is a 'statutory instrument' (a law) that sets minimum terms and conditions of employment. You can search for Modern Awards on the Fair Wor​k Commission website.

An enterprise agreement is an agreement between employers and employees about terms and conditions of employment. You can search for Enterprise Agreements on the Fair Work Commission ​website.

Your 'earnings' can include:

• wages and salary
• amounts paid by your employer for you, such as rent, lease payments on a car, or gym memberships
• the money value of non-cash benefits (for example a company car).

Generally, your earnings won't include:

• reimbursements
• compulsory superannuation payments made by an employer
• payments that can't be worked out in advance (for example commissions, bonuses or overtime payments).

If you are not sure what you earn, or whether you are covered by a modern award or enterprise agreement, you should get legal advice.

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, download Checklist - Making an unfair dismissal application.

If you are not able to make an unfair dismissal application, you may still have rights under other laws. For example:

• a general protections dismissal application
• a discrimination claim (if you have been discriminated against at work)
• a bullying claim (if you haven't been dismissed but you are experiencing workplace bullying).

You should get legal advice to help you understand your options.

For a handy guide to all the requirements you have to meet to make an unfair dismissal application, see Checklist: Making an unfair dismissal application.