How long have you been employed?
The Fair Work Commission (the Commission) can only consider your unfair dismissal application if you have been employed for a 'minimum employment period'. The length of that period will depend on the size of your employer's business.
If your employer has:
- 15 or more employees when you are dismissed, you need to have worked for them for at least six months
- less than 15 employees when you are dismissed, you need to have worked for them for at least one year.
An employer with less than 15 employees is called a 'small business'.
Casual employees are not counted in the headcount of employees unless they are employed on a regular and systematic basis and have a reasonable expectation that they will continue to be employed. A 'regular and systematic basis' could include:
- a set number of shifts per week, fortnight or month
- a set number of hours per week, fortnight or month
- a regular pattern of days, shifts or hours.
The length of time you worked needs to have been continuous. You still have continuous service if:
- you take leave (for example annual leave or maternity leave)
- you are promoted or moved to another position with your employer
- you switch between full time and part time employment (for example if you reduce your hours because of family responsibilities).
If your employer changed because of a sale of business, the periods of employment for each employer will usually be one continuous period of employment (unless you were told this wouldn't be the case when the business was sold).
A probationary period of employment does not affect your ability to make an unfair dismissal application to the Commission. You can still apply if you are on probation, as long as you have completed the minimum employment period that applies to you.
If you want to make an unfair dismissal application to the Fair Work the Commission, you must do so within 21 days of the date you were dismissed. If you are not sure whether your employer is a small business, or how long you have been employed, you should get legal advice.
Case study - Aasif
Aasif was a full time employee at Walk This Way Footwear. Aasif was one of 12 staff members who worked either full-time or regular part-time hours. There were also four casual employees who worked only when needed, such as close to Christmas or when other staff were sick or on holidays.
After 11 months in the job, Aasif was told that he was being fired. If Aasif's employer is a small business, he cannot make an unfair dismissal application as he has worked there for less than one year.
If you are not able to make an unfair dismissal application, you may still have rights under other laws.
a general protections dismissal application
a discrimination claim (if you have been discriminated against at work)
a bullying claim (if you haven't been dismissed but you are experiencing workplace bullying).
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.