Unfair dismissal; are you eligible to apply?
The national fair work system entitles almost all of Australian employees to be protected from unfair dismissal. If your employer was a company or other incorporated body, it is likely that you are protected from unfair dismissal by the Fair Work Act 2009. The potential remedies for unfair dismissal include reinstatement if desired and compensation. If you were employed by a sole trader in Western Australia, your claim can be pursued with the Western Australian Industrial Relations Commission. Some States have transferred their unfair dismissal powers to the Commonwealth.
Under the national fair work system there are five qualifying criteria, called jurisdictional elements by lawyers.
They are
- You must have been dismissed or constructively dismissed while an employee.
- You must have been employed by a “national system employer” which essentially means a company or other incorporated body (not a sole trader) which engages in trade and commerce or a federal government institution. Local governments and not for profit NGOs can fall into either system depending upon the extent of their commercial activities.
- Your annual remuneration, technically called your “annual rate of earnings”, must be less than the “high income threshold”, a sum of $167,500 from 1 July 2023 (this sum increases on 1 July each year) OR an enterprise agreement or modern award applies to your employment; if the claim must be pursued in the Wewstern Australian Industrial relations Commssion the “prescribed amount” $187,800 from 1 July 2023.
- You must have been employed for at least the minimum qualifying period which is 12 months for employees of small business employers or 6 months for non-small business employers.
- You must make an application for an unfair dismissal remedy to the Fair Work Commission within 21 days of the dismissal (or such further time as may be granted in exceptional circumstances). The relevant time limit in the Western Australian Industrial Relations Commission is 28 days.
- Of course you should take professional legal advice as soon as you can after a dismissal because the above basic qualifications each have various layers of legal complexity.
Other qualifying criteria apply in the Western Australian system. As an example probation is important in the State system but not in the national fair work system, and the State system has a “prescribed amount” rather than a “high income threshold”. The time limits to apply are also different, although the potential remedies are much the same.