Dismissal from work
Your employment can be ended for many reasons and in different ways. The most usual way is dismissal. There are two types of dismissal which you can take action against - unlawful dismissal
and unfair dismissal
What is unlawful dismissal?
Unlawful dismissal generally applies to all employees in Australia and all applications are made in the federal system. This means that employees in every State and Territory of Australia make their unlawful dismissal applications in the same way. Unlawful dismissal happens when your employment is ended for an unlawful reason. It is against the law for an employer to end your employment because of:
- Your race, colour, sexual preference, age, disability, marital status, family responsibilities, pregnancy, religion, political belief or national descent;
- Joining or not joining a trade union;
- A temporary absence from work because of illness or injury;
- Filing a complaint against your employer;
- Refusing to make, sign, extend or end an Australian Workplace Agreement (AWA);
- Your absence from work during parental leave;
- Reasons unrelated to your ability to do the job.
It is also against the flaw if your employer does not give you the right amount of notice of your dismissal or pay you instead of giving notice. Your employer must give you:
Who can make an unlawful dismissal application?
- 1 weeks notice if you wee employed for one year or less;
- 2 weeks notice if you were employed for between one and three years;
- 3 weeks notice if you were employed for between 3 and 5 years;
- 4 weeks notice if you were employed for more than 5 years.
All Australian employees can make an unlawful dismissal application except
How do I make an unlawful dismissal application?
- If you are on a trial period of 3 months or less which was worked out when you entered your employment contract;
- A casual employee, unless you have been with your employer for 12 months and expect to continue in your current employment;
- A trainee employed for a specific length of time;
- If you are not covered by a federal award and earn more than $69,200 a year;
- If you are employed for a certain length of time or to do a specific task.
All applications for unlawful dismissal are made to the Australian Industrial Relations Commission (AIRC). You can get an application form called Application for Relief of Termination of Employment (Form R18)
. The AIRC can help you with the application.
You must make your application within 21 days
of being dismissed. A late application can be made in some circumstances, if permission is sought and is granted.
There is a $50 filing fee. If you believe that paying a filing fee would cause you 'serious economic hardship' then you can ask not to pay the fee. You should ask for the form called Application for Waiver of Unfair and Unlawful Termination Lodgement Fee
and hand it in with your application.
What is unfair dismissal?
A dismissal is unfair when it is harsh, unreasonable or unjust. To work out if your dismissal is unfair, all the circumstances of your dismissal must be considered. This includes considering if:
- There was a good reason for dismissing you;
- You were given a reason for your dismissal;
- You were given the chance to respond;
- You were warned about any poor work performance.
Remember, you can be dismissed if you cannot do your job, fail to follow instructions or do not use skill and care while working. Your employer can also dismiss you if there is no longer any work for you.
How do I make a unlawful dismissal application?
Different States and Territories are covered by different laws. There is also federal law that could apply to you. It is very important to check which award you are covered by
This information is of a general nature and is written by the National Children's and Youth Law Centre (NCYLC). Be aware that individual States and Territories have different rules for some of these issues. If you would like further information about the issues, as they apply to your State or Territory, contact lawstuff.org.au, or use, LawMail on lawstuff.org.au to get some advice.