Fair Work Commission

Independent contractors are not eligible for a remedy under the national unfair dismissal laws.

However, if your employer called you a contractor, but you were treated more like an employee, continue with the quiz. The topics below contain more information on employees and independent contractors.

You may also like to read the information on sham arrangements and the general protections provisions of the Fair Work Act 2009 on the Fair Work Commission's website.

Volunteers, interns and work experience participants are not eligible for a remedy under the national unfair dismissal laws.

Section 382 of the Fair Work Act 2009 provides that a person is protected from unfair dismissal if, among other things, they are an employee. Volunteers, unpaid interns and work experience participants are not considered employees for the purposes of an unfair dismissal application.

This quiz is designed for employees who wish to know whether they are eligible for a remedy under the national unfair dismissal laws.

If an employee has lodged an application for unfair dismissal remedy

If an application for unfair dismissal remedy has been lodged, the employer will be sent a copy of the application as well as a response form.

If you are an employer and have received a Form F2 (Application for unfair dismissal remedy) from an employee or former employee, you may be interested to read about how to respond to an application, including how to lodge an objection. 

If you want to dismiss an employee

Information about ending employment is available from the Fair Work Ombudsman.

The Fair Work Commission is a tribunal and cannot tell you whether you should dismiss an employee or how to dismiss an employee fairly. You may be able to get information or advice from:

• if you are a member, your employer association
• business.gov.au or the equivalent government body in your state or territory
• a lawyer.

If you are a small business, you can find information about unfair dismissals and small businesses, including the Small Business Fair Dismissal Code, on the Commission's website.

An employee usually:

• does ongoing work that is controlled by their employer
• works hours they're told to work by their employer
• is not responsible for financial risk
• is entitled to superannuation from their employer
• is entitled to minimum wages
• has income tax taken out of their pay
• is paid regularly (eg weekly/fortnightly/monthly)
• is generally entitled to paid leave if they are permanent employees.

An independent contractor usually:

• decides how to do their work and what skills they need to do it
• decides whether to employ someone else to do the work
• carries the risk of making a profit or loss
• pays their own superannuation and tax, including GST
• has their own insurance
• is contracted to work for a set time or do a set task
• decides what hours to work
• invoices for their work or gets paid at the end of the contract or
• project
• doesn't get paid leave.

Unfair dismissal applications should be made within the first 21 days after your dismissal has taken effect. If you are still working out your notice period, your dismissal may not have taken effect yet.

If you are still working for your employer, you might like to seek legal advice before making an application.

An unfair dismissal occurs where the Fair Work Commission finds that, among other things, the employee has been dismissed.

If you have not been dismissed in accordance with section 386 of the Fair Work Act 2009, the Fair Work Commission cannot find that you have been unfairly dismissed.

If you think that you may soon be dismissed, you may wish to seek legal advice to determine your best course of action.

If you are being threatened with dismissal or adversely affected in another way because of a discriminatory reason or because you exercised a workplace right, you might like to read about the general protections provisions in the Fair Work Act 2009.

A dismissal can be one of a range of things, including termination by the employer, a forced resignation or a demotion.

Termination by the employer

The Fair Work Act 2009 defines dismissal as being where an employee is terminated at the employer's initiative.

Forced resignation

Dismissal can also be where an employee resigned, but was forced to resign because of the employer's conduct.

Demotion

Sometimes when an employee has been demoted, this can also be a dismissal. A demotion would not be a dismissal if there had been no significant reduction in pay or duties and if the employee had stayed working for the employer.

Fixed term contracts

A person has not been dismissed if they were employed under a contract for a specified timeframe, specified task, or for the duration of a specified season, and the employment came to an end at the end of that period. 

Training arrangements with predetermined end dates

A person has not been dismissed if they had a training arrangement with their employer and the training arrangement specified that the employment was limited to the duration of the training arrangement and the employment ended at the end of that training arrangement.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• terminations at the employer's initiative
• forced resignations
• demotions.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

If your demotion has not resulted in a significant reduction in pay or duties, your demotion cannot be found to be an unfair dismissal.

Related legislation – Section 386 of the Fair Work Act 2009 – meaning of dismissed.

There is no straightforward definition of what is considered significant in this situation. It can depend on a number of things, including how much you are being paid, where you are working, what type of work you do and how long you have been employed there. If you believe the reduction was significant, you may want to consider seeking independent legal advice.

Note: An application for unfair dismissal should be made within 21 calendar days. If this is the only question you have regarding your suitability, consider lodging the application anyway. Withdrawing an application is easier than lodging one after the 21 day time limit has expired.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

If your demotion has resulted in a significant reduction in pay or duties but you are still working for your employer, your demotion cannot be found to be an unfair dismissal.

Related legislation – Section 386 of the Fair Work Act 2009 – meaning of dismissed

If your dismissal took effect more than 21 calendar days ago, your application is out of time.

The Fair Work Commission will only allow this application to be lodged late if it is satisfied that there were exceptional circumstances that led to it being lodged out of time.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• late lodgment

Applications for unfair dismissal must be made to the Fair Work Commission within 21 days of the dismissal taking effect. You can make your application by email, fax, post, electronic lodgment or by telephone. 

The Fair Work Commission will only allow a late application if it is satisfied that there were exceptional circumstances that led to it being lodged out of time. 

If you are nearing the 21 day timeframe and are having difficulties lodging your application in time, please call the Commission on 1300 799 675.

Note that the Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application.

An unfair dismissal occurs where the Fair Work Commission finds that, among other things, the employee has been dismissed.

If you have not been dismissed in accordance with section 386 of the Fair Work Act 2009, the Fair Work Commission cannot find that you have been unfairly dismissed.

If you think that you may soon be dismissed, you may wish to seek legal advice to determine your best course of action.

If you are being threatened with dismissal or adversely affected in another way because of a discriminatory reason or because you exercised a workplace right, you might like to read about the general protections provisions in the Fair Work Act 2009.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

For the purposes of unfair dismissal, the Fair Work Act 2009 provides that a person has not been dismissed if:

• the person was employed under a contract of employment:
• for a specified period of time
• for a specified task, or
• for the duration of a specified season

and

• the employment has terminated at the end of:
• the period
• on completion of the task, or
• at the end of the season

Related legislation – Section 386(2) of the Fair Work Act 2009 – meaning of dismissed.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

For the purposes of unfair dismissal, the Fair Work Act 2009 provides that a person has not been dismissed if the person resigned from his or her employment. 

Related legislation – Section 386(1) of the Fair Work Act 2009 – Meaning of dismissed

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

This is because your dismissal was a case of genuine redundancy.

A person's dismissal was a case of genuine redundancy if the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

However:

•       if your employer was obliged to comply with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy, or
•       if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer,

the redundancy is not a genuine redundancy. If this is the case, change your answer to this question and continue with the quiz.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

The following employees in New South Wales, Queensland and South Australia are not covered by the national workplace relations system:

• state public sector employees
• local government employees

This means that they are not eligible for an unfair dismissal remedy from the Fair Work Commission.

These 3 states have their own state laws and tribunals that deal with unfair dismissal for the employees listed above.

Contact details for the relevant state commisssions/tribunals can be found on the Related sites page.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

The following employees in New South Wales, Queensland and South Australia are not covered by the national workplace relations system:

• state public sector employees
• local government employees

This means that they are not eligible for an unfair dismissal remedy from the Fair Work Commission.

These 3 states have their own state laws and tribunals that deal with unfair dismissal for the employees listed above.

Contact details for the relevant state commisssions/tribunals can be found on the Related sites page.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

State public sector employees in Tasmania are not covered by the national workplace relations system.

This means that they are not eligible to make an unfair dismissal application at the Fair Work Commission.

Tasmania has its own state tribunal that deals with unfair dismissal for these employees.

Contact details for the Tasmanian Industrial Relations Commission can be found on the Related sites page.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

The following employees in Western Australia are not covered by the national workplace relations system:

• state public sector employees
• employees of non-consitutional corporations (e.g. businesses that are sole traders or partnerships)
• employees of local governments that are not consitutional corporations

This means that they are not eligible to make an unfair dismissal application at the Fair Work Commission.

Western Australia has its own state laws and industrial relations commission that deals with unfair dismissal for the employees listed above.

Contact details for the Western Australian Industrial Relations Commission can be found on the Related sites page.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

The following employees in Western Australia are not covered by the national workplace relations system:

• state public sector employees
• employees of non-consitutional corporations (e.g. businesses that are sole traders or partnerships)
• employees of local governments that are not consitutional corporations

This means that they are not eligible to make an unfair dismissal application at the Fair Work Commission.

Western Australia has its own state laws and industrial relations commission that deals with unfair dismissal for the employees listed above.

Contact details for the Western Australian Industrial Relations Commission can be found on the Related sites page.

There is no easy way to determine this. You can ask the council to tell you whether they fall under Western Australian state laws or national laws. If you cannot get an answer, you may want to consider seeking independent legal advice.

Note: An application for unfair dismissal should be made within 21 calendar days. If this is the only question you have regarding your suitability, consider lodging the application anyway. Withdrawing an application is easier than lodging one after the 21 day time limit has expired.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

Casual employees who do not work on a regular and systematic basis are not eligible to make an unfair dismissal application at the Fair Work Commission.

Full-time

Full-time employees work an average of 38 hours per week and usually have ongoing employment. 

Full-time employees are entitled to all of the conditions of the National Employment Standards including maximum number of hours of work per week, paid annual and personal leave, public holidays, and notice when they lose their job. Other conditions of employment will come from any award or agreement that applies.

Part-time

Part-time employees work an average of less than 38 hours per week. They are usually hired on an ongoing basis and work the same set of hours.

Part-time employees are entitled to the same things as full-time employees, but on a pro rata basis, which means that it's based on the number of hours they work.

Casual

Casual employees are paid based on the number of hours they work. They usually aren't guaranteed a certain number of hours of work per week, but can work regular hours.

Casuals are paid a higher rate of pay, called a casual loading, instead of receiving some of the benefits that full-time and part-time employees get. For example, casuals don't usually get paid annual leave or paid sick leave.

There is no definition of regular and systematic work in the Fair Work Act 2009, but a clear pattern or roster of hours can be strong evidence of regular and systematic employment. There are no set minimum weekly hours or set minimum number of shifts.

Go to the Fair Work Commission's Unfair Dismissal Bench Book to find case law about:

•      Employment on a regular and systematic basis

Count all full-time and part-time employees at the time the dismissal took effect.

Include yourself (the employee who has been dismissed) and any other employee dismissed at the same time.

Only count casual employees if they are employed on a regular and systematic basis.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

An employee who works for a business with 15 or more employees must have worked for the business for at least 6 months at the time they were dismissed in order to be eligible to make an unfair dismissal application.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• the minimum employment period

An employee may be eligible for a remedy under the national unfair dismissal laws if they have completed the minimum employment period of either 6 months or 1 year, depending on the size of the business.
· 6 months – where the employer employs 15 or more employees
· 1 year – where the employer employs fewer than 15 employees

The period of employment starts on the date employment commences. The period finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier.

Go to the Fair Work Commission's Unfair Dismissals Benchbook where you can find case law about:

• The minimum employment period

Any period of continuous service counts towards the minimum employment period.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• What is continuous service?

Continuous service is an unbroken period of employment. Things that may break a period of employment include:

• if you have previously resigned from your job and then been re-hired
• if you have previously been dismissed from your job and then been re-hired
• if there has been a transfer of business and you were informed in advance of the transfer that any period of service with the old employer would not be recognised.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• Transfer of employment

 Time spent as a casual does not count towards the minimum period of employment unless:

• your casual employment was on a regular and systematic basis, and
• when you were a casual, you had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Go to the Fair Work Commission's Unfair Dismissal Benchbook to find case law about:

• Periods of service as a casual
• What is employment on a regular and systematic basis?
• What is a reasonable expectation of continuing employment?

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

An employee who works for a small business (that is, a business with 15 or fewer employees) must have worked for the business for at least 12 months at the time they were dismissed in order to be eligible to make an unfair dismissal application.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• the minimum employment period

An employee may be eligible for a remedy under the national unfair dismissal laws if they have completed the minimum employment period of either 6 months or 1 year, depending on the size of the business.

• 6 months – where the employer employs 15 or more employees
• 1 year – where the employer employs fewer than 15 employees

The period of employment starts on the date employment commences. The period finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier.

Go to the Fair Work Commission's Unfair Dismissals Benchbook where you can find case law about:

• The minimum employment period

Any period of continuous service counts towards the minimum employment period.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• What is continuous service?

Continuous service is an unbroken period of employment. Things that may break a period of employment include:

• if you have previously resigned from your job and then been re-hired
• if you have previously been dismissed from your job and then been re-hired
• if there has been a transfer of business and you were informed in advance of the transfer that any period of service with the old employer would not be recognised.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• Transfer of employment

Time spent as a casual does not count towards the minimum period of employment unless:

• your casual employment was on a regular and systematic basis, and
• when you were a casual, you had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Go to the Fair Work Commission's Unfair Dismissal Benchbook to find case law about:

• Periods of service as a casual
• What is employment on a regular and systematic basis?
• What is a reasonable expectation of continuing employment?

Based on the answers you have given, it appears that you may be eligible for a remedy under the national unfair dismissal laws.

Information on how to make an application

• Download the Form F2 (below) and complete all details.
• Go to the Lodge an application page for information on applicable fees and how to lodge a completed application.
• For information about what happens after an unfair dismissal application has been lodged, go to What is the process for unfair dismissal claims?
• Completed application forms can be lodged by email, facsimile, telephone, post or in person at one of the Fair Work Commission's offices.

Need advice?

The Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application.

There are a range of legal and other advisory services available across Australia that may be able to help you decide.

Contact details can be found on the Enquiries page.

Earnings is defined in section 332 of the Fair Work Act 2009.

Earnings include:

• wages
• amounts dealt with on the employee's behalf or as they direct
• the agreed monetary value of non-monetary benefits.

Earnings do not include:

• amounts that cannot be determined in advance such as incentive-based bonuses or overtime (except guaranteed overtime)
• compulsory superannuation contributions are not included in the calculation of an employee's earnings.

Go to the Fair Work Commission's Unfair Dismissals Benchbook to find case law about:

• What are earnings?

This includes case law on:

• what happens when the employee and employer have no agreed amount for non-monetary benefits, and
• private use of a work vehicle.

Based on the answers you have given, it appears that you may be eligible for a remedy under the national unfair dismissal laws.

Information on how to make an application

• Download the Form F2 (below) and complete all details.
• Go to the Lodge an application page for information on applicable fees and how to lodge a completed application.
• For information about what happens after an unfair dismissal application has been lodged, go to What is the process for unfair dismissal claims?
• Completed application forms can be lodged by email, facsimile, telephone, post or in person at one of the Fair Work Commission's offices.

Need advice?

The Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application.

There are a range of legal and other advisory services available across Australia that may be able to help you decide.

Contact details can be found on the Enquiries page.

Based on the answers you have given, it appears that you may be eligible for a remedy under the national unfair dismissal laws.

Information on how to make an application

• Download the Form F2 (below) and complete all details
• Go to the Lodge an application page for information on applicable fees and how to lodge a completed application.
• For information about what happens after an unfair dismissal application has been lodged, go to What is the process for unfair dismisal?
• Completed application forms can be lodged by email, facsimile, telephone, post or in person at one of the Fair Work Commission's offices.

Need advice?

The Fair Work Commission is a tribunal and cannot help you decide whether or not to make an application.

There are a range of legal and other advisory services available across Australia that may be able to help you decide.

Contact details can be found on the Enquiries page.

Based on the answers you have provided, it appears that you are not eligible for a remedy under the national unfair dismissal laws.

If you earn above the high income threshold, and you were not covered by a modern award or an enterprise agreement, you are not eligible to make an application for unfair dismissal.

The Fair Work Act 2009 provides that an employee is not protected from unfair dismissal if:

• the person's annual rate of earnings, and such other amounts (if any) is more than the high income threshold, and
• no modern award covers the person or no enterprise agreement applies to the person in relation to their employment.

Related legislation – Section 382 of the Fair Work Act 2009 – When a person is protected from unfair dismissal

If you would like to pursue the matter on other grounds (for example, if your employer has not paid you on termination according to your contract, or if you think you were dismissed for a discriminatory reason) you may like to seek independent legal advice to find out what other options may be available to you.

A modern award is a legal document that sets out minimum wages and conditions for an industry or occupation. Awards cover things like rates of pay, overtime, penalty rates and allowances. The conditions in awards apply on top of the minimum conditions in the National Employment Standards.

An enterprise agreement is a legal document that sets out the conditions of employment between a group of employees and their employer.

Enterprise agreements can be made by an employer with a group of employees, or by more than one employer with groups of employees.

In some cases, enterprise agreements can be made by an employer and a union for a new enterprise before any employees start working for the business.

If you're not sure whether you were covered by an award or had an enterprise agreement that applied to you, the Fair Work Ombudsman can help you find out.

More information can be found on the website at www.fairwork.gov.au.