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This topic covers
- Dismissals, including unfair dismissal and general protections dismissal
- Redundancy
- Termination pay, notice, references and contract issues
This information is for national system employees - employees covered by the Fair Work Act 2009 (Cth). Most employees are national system employees, unless they work for a NSW government agency, Local Council or state government owned corporation.
This topic does not apply to state system employees - employees that work for a NSW government agency, Local Council or state government owned corporation, except where stated. For more information, see State system employees.Â
- Dismissals, including unfair dismissal and general protections dismissal
Unfair dismissal
| Time limit | Action |
|---|---|
| 21 days | To make a claim for unfair dismissal, from the date you were dismissed. The date you were dismissed will usually be either the last day you worked or when you were told you were dismissed, whichever is later. You may be able to make a late application for unfair dismissal if there are exceptional circumstances that prevented you applying in time. If you are unsure about whether to make an unfair dismissal application, it is best to make the claim on time rather than seeking an extension to apply late. You can withdraw it if you change your mind. |
| 21 days | To file a notice of appeal if you want to dispute a decision made by the Commission. You must get permission from the Commission to make the appeal to its full bench. You can apply for an extension of time in some circumstances. |
General protections dismissal
| Time limit | Action |
|---|---|
| 21 days | To make a general protections dismissal application, from the date you were dismissed. You may be able to make a late general protections dismissal application if there are exceptional circumstances. If you are unsure about whether to apply, it is best to make the claim on time, rather than seeking an extension to apply late. You can withdraw it if you change your mind. |
| 14 days | If you make a general protections dismissal application to the Commission and the conciliation (mediation) to resolve your dispute is unsuccessful, you have 14 days from when you receive a certificate from the Commission to apply to the Commission for an arbitration or to the Federal Circuit and Family Court of Australia or Federal Court of Australia. |
Organisations
| Organisation | Responsibilities |
|---|---|
| Fair Work Commission | Has the power to deal with:
|
Federal Circuit and Family Court of Australia Federal Court of Australia | Has jurisdiction to deal with applications relating to general protections dismissals. |
Legislation
| Authority | Covers |
|---|---|
| Fair Work Act 2009 (Cth) | Applies to all national system employees. Employees of a NSW government agency, a Local Council or a NSW state government owned corporation are state system employees. Some state public sector and local government employers have agreements approved by and registered with the Fair Work Commission (the Commission). Employees covered by those registered agreements are within the national system and are covered by the Fair Work Act 2009 (Act). |
| Common term | Definition |
|---|---|
Adverse action | Unlawful action taken by your employer when you use or try to use a right you have under the Fair Work Act 2009 (Cth). Examples include:
|
| ​Award | An award is an enforceable document containing minimum terms and conditions of employment. In general, an award applies to employees in a particular industry or occupation. The Fair Work Commission has responsibility for making and varying awards.​ |
General protections | Legal rights protected by the Fair Work Act 2009 (Cth) for national system employees, including the right to:
|
| General protections dismissal | When an employer dismisses an employee for using or trying to use their rights at work, such as, the right to take leave and get paid or the right to belong to a union. |
| National system employee | An employee covered by the Fair Work Act 2009 (Cth). It does not include employees working in the NSW public service, for a Local Council, or a state-owned corporation unless their employer has a registered agreement approved by and registered with the Fair Work Commission. |
| Pieceworker | An employee that is paid a fixed amount for each action or result achieved, for example, a clothing maker who is paid a set amount for each piece of clothing made. The employee and employer agree to the rate of pay in writing. |
| Redundancy | A position is made redundant when an employer no longer needs a role to be performed, or no longer needs the same number of employees to perform certain tasks. |
​Registered agreement | ​A document between an employer and their employees regarding employment conditions. An agreement must be approved by and registered with the Fair Work Commission. Examples of registered agreements include:
|
| Small business | An employer that has less than 15 employees. The number of employees is determined by a head count of full time and part time employees as well as any casual employees that work on a regular and systematic basis. You need to include yourself in working out the number of employees. |
| Summary dismissal | Dismissal on the spot, without notice and without payment in lieu of notice. An employee can be summarily dismissed for serious misconduct. |
Unfair dismissal | A dismissal that is:
|
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| Organisation | Fee |
|---|---|
| Fair Work Commission | You must pay a fee to apply to the Fair Work Commission. You can apply for the application fee to be waived (cancelled) if you are in serious financial hardship - see Fees and costs on the Fair Work Commission website. |
| Federal Circuit and Family Court of Australia | You must pay a fee to apply to the Federal Circuit and Family Court of Australia - see General federal law fees on Federal Circuit and Family Court of Australia website. If you are a concession card holder, or you are experiencing financial hardship, you may be able to apply for a fee exemption – see Exemption from Paying Court Fees on the Federal Court of Australia website. |
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| Organisation | Form |
|---|---|
Form F2 - Unfair dismissal application. Form F8 - General protections application involving dismissal. | |
| Federal Circuit and Family Court of Australia | To make a general protections dismissal claim, you need to file an Application - Fair Work Division and a Form 2 - Claim under the Fair Work Act 2009 alleging dismiss​al in contravention of a general protection. Once you have served your claim on your employer, you must file an Affidavit of service. |
| Federal Court of Australia | Statement of claim |
| Organisation | Type | Costs |
|---|---|---|
| Fair Work Commission | Legal costs | Generally, you and your employer will have to pay your own legal costs, regardless of whether you win or lose at the Fair Work Commission. However, in some circumstances, costs may be awarded:
|
Federal Court of Australia Federal Circuit and Family Court of Australia | Legal costs | If you have applied to the Federal Court of Australia or Federal Circuit and Family Court of Australia, you will usually have to pay your own legal costs if you get a lawyer to represent you. In limited circumstances, the Court can make cost orders, for example, where one party started proceedings vexatiously or without reasonable cause, or wher​e a party has refused to participate in proceedings or caused the other party to incur costs. |
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Last updated: February 2024