Coverage & eligibilty
On this page:
- Who is covered by the unfair dismissal laws?
- Who is not covered by the unfair dismissal laws?
- Who is eligible to make an application?
- What is harsh, unjust or unreasonable?
- What is a genuine redundancy?
- Costs
- Privacy
Who is covered by the unfair dismissal laws?
Only employees covered by the national workplace relations system are covered by the unfair dismissal laws. (Other employees may have access to remedies under State legislation). The national workplace relations system covers:
- all employees in Victoria, the Northern Territory or the Australian Capital Territory
- those employed by private enterprise in New South Wales, Queensland, South Australia or Tasmania
- those employed by local government in Tasmania
- those employed by a constitutional corporation in Western Australia (including Pty Ltd companies)—this may include some local governments
- those employed by the Commonwealth or a Commonwealth authority
- a waterside employee, maritime employee or flight crew officer in interstate or overseas trade or commerce.
Who is not covered by the unfair dismissal laws?
The laws do not cover:
- those employed by State government in New South Wales, Queensland, Western Australia, South Australia and Tasmania
- those employed by local government in New South Wales, Queensland and South Australia
- those employed by a non-constitutional corporation in Western Australia (including a sole trader, partnership or Trust)
- contractors
- employees who resign and were not forced to do so by the conduct of their employer
- those employed under a contract for a specified period of time, a specified task, or the duration of a specified season who are dismissed at the end of the period, task or season
- trainees whose employment was for a specified period of time and who are dismissed at the end of the training arrangement
- employees who have been demoted but have had no significant reduction in their remuneration or duties and who remain employed by the employer who demoted them.
Who is eligible to make an application?
An employee is eligible to make an application for unfair dismissal if they have completed the minimum employment period of:
- one year—where the employer employs less than 15 full-time equivalent employees (a small business employer)
- six months—where the employer employs 15 or more full-time equivalent employees.
In addition, if the person earns more than $113,800 per year, at least one of the following must apply:
- an award covers the person
- an enterprise agreement applies to the person.
What is harsh, unjust or unreasonable?
In considering whether a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account:
- whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees), and
- whether the person was notified of that reason, and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person, and
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal, and
- if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal, and
- the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal, and
- any other matters that FWA considers relevant.
What is a genuine redundancy?
A person's dismissal was a case of genuine redundancy if:
- the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise, and
- the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
- the employer's enterprise
- the enterprise of an associated entity of the employer.
Costs
A person involved in an unfair dismissal case before Fair Work Australia must meet their own costs.
Fair Work Australia may order a person to bear some or all of the costs of another person if the unfair dismissal application or response to it:
- was frivolous, vexatious or made without reasonable cause
- had no reasonable prospect of success.
In certain circumstances, Fair Work Australia may also make a costs order against a lawyer or paid agent representing a party in an unfair dismissal case.
Privacy
In general, unfair dismissal case files and discussions in private conferences are confidential. Details will usually only be disclosed to the parties directly involved or their representatives.
Fair Work Australia is required to publish its decisions and does so by reproducing them on a section of its website.
Need more information?
- Go to the Privacy section.
