Can you apply? - Frequently Asked Questions​

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1. I was fired from my part-time job 18 days ago. I was going to make an unfair dismissal application bu​​t I was really busy at school with exams and assignments and I just didn't get around to it. Can I still make an application?

If you think that you have been dismissed unfairly 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.

It is possible for the Commission to accept late applications, but it will only do so in exceptional circumstances. For more information, see Time limits.

Even if you have a good reason for being late, there may still be other reasons that you cannot make an application. If you are a casual employee, you are only protected from unfair dismissal if you work on a regular and systematic basis. For more information, see Are you a casual employee?

The length of time that you were employed is also an important factor. You need to have been employed for at least six months (or one year if your employer is a small business) to make an application. For more information, see How long have you been employed?

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2. I was sacked from my job and my last day was three d​ays ago. I had worked for my employer for 11 months. Can I make an unfair dismissal application?

If you think that you have been dismissed unfairly you should get legal advice as soon as possible.

If your employer is not a small business, you need to have worked for them for at least six months to make an unfair dismissal application. If they are a small business, you need to have worked for them for one year. Your employer will be a small business if they had less than 15 employees at the time of your dismissal or at the time you were given notice of your dismissal (whichever happened first). For more information, see How long have you been employed?

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3. I was sacked recently and I think my dismissal was unfair. I w​​as paid an annual salary of $105,000 before tax, but I also had a company car. Did I earn too much to make an application?

If you think that you have been dismissed unfairly you should get legal advice as soon as possible.

If you earn more than $162,000 (as at 1 July 2022) you cannot make an unfair dismissal application (unless you are covered by an award or an enterprise agreement). Earnings include salary or wages, as well as the value of other benefits like the use of a car or a sports club membership. Earnings don't usually include reimbursements or employer superannuation contributions. For more information, see Do you earn too much?

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4. I work as a cleaner and my employer told me that they were te​​rminating my contract, and that because I was an independent contractor they didn't need to give me any warnings. Can I make an application for relief from unfair dismissal?

If you think that you have been dismissed unfairly you should get legal advice as soon as possible.

If you are an independent contractor you cannot make an unfair dismissal application. Whether you are an employee or independent contractor will depend on the circumstances of your case. Just because you are called a contractor by the organisation you work for does not make you one. For example, an independent contractor is someone who usually:

• supplies their own equipment
• chooses what hours they work
• chooses how and when they perform the work.

For more information, see Are you an employee or contractor?

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5. I was employed by a local council as a road maintenance technician. The other day, my manager pu​lled me aside and told me that they didn't need me anymore. I was given two weeks pay instead of notice. Can I make an unfair dismissal application to the Fair Work Commission?

To make an unfair dismissal application to the Fair Work Commission (the Commission), you must be covered by national unfair dismissal laws. If you are employed by a local government in New South Wales, Queensland or South Australia, you will usually not be covered by national unfair dismissal laws. For more information, see Can you apply?

If you are not covered by national unfair dismissal laws, you may still be protected by another law in your State or Territory. For example, NSW public servants and local government employees can make an unfair dismissal claim at the NSW Industrial Relations Commission under NSW laws. If you've been dismissed you should get legal advice.

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6. I work Saturdays as a waitress at a cafe. I have been there for about two years and I have always been ​told that I am a casual. Yesterday, I was told that I wouldn't be offered any more shifts as they had decided to try out some other people. What can I do?

Casual employees may be able to make an unfair dismissal application to the Fair Work Commission (the Commission) if they worked on a regular and systematic basis, and believed that they would continue to be given shifts.

For more information, see Are you a casual employee?

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7. I do my work at one company, but I am paid by a different company. My boss told me that I can't make an unfair dismissal application because I am employed through a labour-hire arrangement. Is this true?

It is possible to make an unfair dismissal application if you do your work on a labour hire basis. However, the employer that you list on the application form will usually be the labour-hire company (not the company where you actually performed your work). It is important to put the name of the right employer on your application form. You should find this name on your payslips, letter of offer or contract of employment. This is very complex and if you are in this situation you should get legal advice.