Overview of unfair dismissal 

The eligibility requirements for making an unfair dismissal application under the Fair Work Act 2009 (Cth) (FW Act) are set out in various sections of Pt 3-2. Broadly speaking, whether an employee can claim for unfair dismissal will depend on:

 

  • the type of employment, eg, whether an employee is a national system employee, an independent contractor or a volunteer;

  • the employee’s duration of service;

  • the employee’s salary or coverage under a modern award/enterprise agreement;

  • the occurrence of a “dismissal”;

  • the timing of the claim for unfair dismissal; and

  • whether the employee has already sought another remedy in relation to the same dismissal, eg, a common-law action for wrongful dismissal.

 

Practice Tip: If a former employee lodges an unfair dismissal application in the Fair Work Commission (FWC) and it appears that the employee has not satisfied all the eligibility requirements, the employer should raise a jurisdictional challenge before the merits of the application are considered.