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LawAccess NSW > Representing Yourself - LawAssist

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Was it a dismissal?

​Case Study - KarlCase study icon

Karl was hired by fast food restaurant chain Bill's Burgers to work in their East town store as a casual employee. For the last nine months he has worked 15-20 hours every week, even though the shifts have been on different days.​ ​

Two days ago Karl was told that he would not be offered any more shifts. Karl was not told why he was taken off the roster.

If you are thinking about making an unfair dismissal application, your first step is to work out whether you were dismissed.

    ​​When you may have been dismissed

    You may have been dismissed if:

    • your employer told you that your employment had finished or would finish on a particular date
    • your employer didn't tell you that your employment had finished but acted as though it had, for example not giving you shifts
    • you resigned because of the way your employer acted. For example, your employer told you that you had to resign or they would sack you
    • you were demoted or transferred to a job that pays significantly less, has different duties or does not have as good conditions
    • you were unreasonably asked to transfer to a different location (for example your employer told you that you can only keep your job if you move to a new city).

    If you are forced to resign this is sometimes called 'constructive dismissal'. Constructive dismissal may also happen if:

    • the employer changes the main terms and conditions of your employment and you have not agreed to those changes. For example, being transferred to a role with different duties or being transferred from permanent to casual employment.
    • your employer refuses to obey employment laws (for example pay you the correct wages) and you feel you have no choice but to leave because of this.
    • you are 'squeezed out' by your employer making it impossible for you to stay in the workplace. For example, they repeatedly make unreasonable requests or are hostile to you.

    Alert IconIf you think you were unfairly dismissed, you should get legal advice as soon as possible. If you want to make an unfair dismissal application to the Fair Work Commission (the Commission), you must do so within 21 days of the date you were dismissed.

    ​​When you may NOT have been dismissed

    You may not have been dismissed if:

    • you were employed for a set period of time and that time has ended, for example a fixed term contract
    • you were employed to do a specific task and the task has been completed, for example, working on a one-off project, such as a festival
    • you were employed for a specific season and the season has ended, for example, employment as a ski instructor or as a fruit picker
    • you were employed under a training arrangement and your employment finished when the training was completed
    • you did not go to work or contact the employer to explain your absence from work
    • you were demoted (lowered in grade, rank or status) but your pay or duties were not significantly reduced.

    If your employer put you on a fixed term or seasonal employment arrangement just to avoid their obligations (for example to avoid paying you certain wages or to avoid providing you with other conditions or entitlements), you may still be able to make an unfair dismissal application. If you are in this situation, you should get legal advice.

    Icon - alertIf you haven't been dismissed but you are currently experiencing any workplace bullying, you may be able to make a bullying claim in the Commission. You should get legal advice .

    For answers to commonly asked questions, see What is unfair dismissal? - Frequently Asked Questions.

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