Unfair dismissal; are you eligible to apply?
The national fair work system entitles most but not all of Australian employees to be protected from unfair dismissal, and thus able to pursue a claim for a legal remedy for having been unfairly dismissed. 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 you have been employed for at least six months, and your income does not exceed the “high income threshold. and thus be able to pursue action for a remedy in the national Fair Work Commission.
Employees of non-incorporated bodies, such as sole traders and State government agencies may have access for a remedy for unfair dismissal in a State industrial relations tribunal.
The potential remedies for unfair dismissal include reinstatement if claimed and compensation.**
The general protections and “unlawful” dismissals
The Fair Work Act, which numerically covers most Australian employees, contains additional workplace protections which are in addition to protection from unfair dismissal. These protections, known as the general protections, can often be used to support a claim for relief when an employee is dismissed but is not protected from unfair dismissal, for example because the employee’s annual rate of earnings exceeds the high income threshold or he or she has not been employed for at least the minimum employment period to qualify for protection from unfair dismissal.
The dismissal of an employee who is dismissed in circumstances which constitute a breach of the general protections, for example because one of the reasons for dismissal is that the employee has or has exercised a workplace right, is referred to for convenience by lawyers as “unlawful dismissal” and such claims are very commonly pursued in the Fair Work Commission by employees who suffer adverse action or are dismissed but who may not be able to pursue an unfair dismissal case for example because he or she earns too much remuneration or has not been employed long enough.**
*** There are very tight time limits to making claims about dismissals.