Who is Protected from Unfair Dismissal?

By 25 January 2018Unfair Dismissal
who is protected from unfair dismissal

Persons Protected from Unfair Dismissal

If you are an employee, you are protected from unfair dismissal if:

  • your employer is an employer who is covered by the Fair Work Act; and
  • you meets the eligibility requirements set out in the Fair Work Act.

Is my employer required to comply with the Fair Work Act?

If an employer is a ‘National System Employer’, then they are required to comply with the rules set out in the Fair Work Act.  A National System Employer includes:

  • private sector employers in New South Wales, Queensland, South Australia and Tasmania;
  • local government employers in Tasmania;
  • the Commonwealth and Commonwealth authorities;
  • all employers in Victoria (with limited exceptions in relation to some State public sector employees), the Northern Territory and the Australian Capital Territory;
  • all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands;
  • the employers of waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce; and
  • employers that are constitutional corporations in Western Australia (including Pty Ltd companies)—this may include some local governments and authorities.

The following employers are not National System Employers?

  • Local Government employers in Queensland, New South Wales and South Australia;
  • State government employers in New South Wales, Queensland, Western Australia, South Australia and Tasmania;
  • Employers that are individuals, sole trader, partnerships and trusts in Western Australia; and
  • Employers of employees in the public sector in Victoria who hold high managerial positions.

What are the eligibility requirements?

An employee can make an application for unfair dismissal if they meet the following criteria:

  • you have completed the minimum period of employment. The minimum period is either six months if you work for an employer who employs 15 or more employees or 12 months if you work for an employer who has less than 15 employees. The number of employees are calculated by a simple headcount of all employees, including casual employees who are employed on a regular and systematic basis; and
  • you are employed pursuant to an industrial instrument such as an Award or enterprise bargaining agreement; or

If you are a not employed pursuant to an industrial instrument and you earn more than the high income threshold (which is currently $142,000 until 30 June 2018), then the Fair Work Commission will not have jurisdiction to hear a complaint for unfair dismissal – although, there may be other remedies available to you.

However, if you earn more than the high income threshold but a modern award or enterprise agreement covers your employment you can still be eligible. Contact Anderson Gray Lawyers to find out more if you think this applies to you.

Anderson Gray Lawyers are lawyers for employees and are unfair dismissal experts.  If you feel you have been unfairly dismissed from your employment, don’t hesitate to contact us today! We have offices in Brisbane, Sydney, and Melbourne.