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You need to be an employee to make an unfair dismissal application. If you are an independent contractor you cannot apply.
Whether a person is an employee or an independent contractor depends on a number of things. If your contract says you are a contractor, this doesn't necessarily mean that you are.
Someone who is an independent contractor might:
Someone who is an employee might:
Employers can't attempt to avoid (contract out of) the unfair dismissal protections. So an employer cannot:
Time limits apply when making an unfair dismissal application to the Fair Work Commission (the Commission).
If you want to make an unfair dismissal application, you must do so within 21 days of the date you were dismissed. If you are not sure if you are an employee or a contractor, you should get legal advice.
Case study - Mei
Mei worked as a cleaner. She used her own equipment, which she transported in her own van, and cleaned various offices around the city. She got most of her work through Citywide Cleaning. Citywide Cleaning provided Mei with a list of offices to clean but left it up to Mei to decide in what order they needed to be done. Mei invoiced City Wide for her cleaning services.
Citywide Cleaning decided they no longer wanted Mei to clean offices because there had been some complaints about the quality of the cleaning. They sent her a letter saying that they would not be providing her with any more work.
Mei used her own equipment and performed the cleaning jobs at times she chose. She also invoiced City Wide for payment for the work she performed, and made arrangements to pay tax directly to the tax office. All of these factors suggest that Mei is probably a contractor, and not an employee.
If you are not able to make an unfair dismissal application, you may still have rights under other laws.
You should get
legal advice to help you understand your options.
For a handy guide to all the requirements you have to meet to make an unfair dismissal application, see
Checklist: Making an unfair dismissal application.
For answers to commonly asked questions, see
Can you apply? - Frequently asked questions.