Termination

To make a claim for unfair dismissal, from the date you were dismissed. The date you were dismissed will usually be either the last day you worked or when you were told you were dismissed, whichever is later. 

You may be able to make a late application for unfair dismissal if there are exceptional circumstances that prevented you applying in time. 

If you are unsure about whether to make an unfair dismissal application, it is best to make the claim on time rather than seeking an extension to apply late. You can withdraw it if you change your mind.

To make a general protections dismissal application, from the date you were dismissed. 

You may be able to make a late general protections dismissal application if there are exceptional circumstances.

If you are unsure about whether to apply, it is best to make the claim on time, rather than seeking an extension to apply late. You can withdraw it if you change your mind. 

Has the power to deal with:

• unfair dismissal
• general protections dismissal applications, and
• unlawful termination applications.

Federal Circuit and Family Court of Australia

Federal Court of Australia

Applies to all national system employees.

Employees of a NSW government agency, a Local Council or a NSW state government owned corporation are state system employees. Some state public sector and local government employers have agreements approved by and registered with the Fair Work Commission (the Commission). Employees covered by those registered agreements are within the national system and are covered by the Fair Work Act 2009 (Act). 

Adverse action

• being dismissed or demoted because you complain about the conditions at work or enquire about your entitlements
• being refused parental leave
• your employer changing your work conditions to your detriment
• being unlawfully discriminated against.

Constitutional covered businesses include:

• proprietary limited companies
• foreign corporations
• trading or financial corporations formed within the limits of the Commonwealth
• the Commonwealth
• a Commonwealth authority
• a body corporate incorporated in a territory, or
• businesses or organisations operating principally in a territory or Commonwealth place. 

Constitutional covered businesses don’t include sole traders, partnerships, some state government employees, or corporations whose main activity is not trading or financial.

A type of regulated worker. An independent contractor who is a party to a services contract either as:

• an individual
• a director of a body corporate
• a trustee of a trust, or
• a partner in a partnership. 

An employee-like worker performs all or most of the work under the services contract or through a digital labour platform and doesn't perform work as an employee.

They have two or more of the following:

• low bargaining power in negotiations relating to the services contract
• receives the same or less pay than an employee would get
• little authority over how they perform work.

General protections

• correct pay, leave and other entitlements
• be in a union and participate in a union activity, or not be in a union or not participate in union a activity  
  
• take time off work, if you are injured or sick
• not be the victim of unlawful discrimination
• complain or enquire about workplace conditions
• the benefit of any industrial law or instrument, for example, an award or enterprise agreement.

​Registered agreement

​A document between an employer and their employees regarding employment conditions. An agreement must be approved by and registered with the Fair Work Commission. Examples of registered agreements include:

• enterprise agreements
• collective agreements
• greenfields agreements
• certified agreements
• Australian Workplace Agreements (AWA), and
• Individual Transitional Employment Agreements (ITEA).

State referred national system businesses include:

• employees in NSW, South Australia, Queensland, Tasmania and Victoria who are employed by sole traders, partnerships, other unincorporated entities or non-trading corporations
• most of the Victorian state government
• Tasmanian local government employees.

Unfair dismissal

• harsh, unjust or unreasonable
  
• not a case of genuine redundancy
  
• not made in accordance with the Small Business Fair Dismissal Code, if your employer is a small business.

You must pay a fee to apply to the Fair Work Commission.

You can apply for the application fee to be waived (cancelled) if you are in serious financial hardship - see Fees and costs on the Fair Work Commission website.

You must pay a fee to apply to the Federal Circuit and Family Court of Australia - see General federal law fees on Federal Circuit and Family Court of Australia website.

If you are a concession card holder, or you are experiencing financial hardship, you may be able to apply for a fee exemption – see Exemption from Paying Court Fees on the Federal Court of Australia website.

Fair Work Commission

Form F2 - Unfair dismissal application.

Form F8 - General protections application involving dismissal. 

To make a general protections dismissal claim, you need to file an Application - Fair Work Division and a Form 2 - Claim under the Fair Work Act 2009 alleging dismiss​al in contravention of a general protection.

Once you have served your claim on your employer, you must file an Affidavit of service.

My problem is about

Forms - General protections dismissal

Forms - Unfair dismissal

Generally, you and your employer will have to pay your own legal costs, regardless of whether you win or lose at the Fair Work Commission.

However, in some circumstances, costs may be awarded:

• against you if your application is dismissed for being frivolous or vexatious, or 
• against you or your employer if either party's conduct in running the case was unreasonable.

Federal Court of Australia 

Federal Circuit and Family Court of Australia

If you have applied to the Federal Court of Australia or Federal Circuit and Family Court of Australia, you will usually have to pay your own legal costs if you get a lawyer to represent you.

In limited circumstances, the Court can make cost orders, for example, where one party started proceedings vexatiously or without reasonable cause, or wher​e a party has refused to participate in proceedings or caused the other party to incur costs.