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. If your employer was a sole trader, and you were employed in Western Australia, it is likely that you are protected from unfair dismissal by the Industrial Relations Act 1979 WA. The potential remedies for unfair dismissal include reinstatement if desired and compensation.
Under the national fair work system there are five qualifying criteria, called jurisdictional elements by lawyers.
- 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 $145,400 from 1 July 2018 (this sum increases on 1 July each year) OR an enterprise agreement or modern award applies to your employment.
- 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).
- 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.