See Fair Work Act s.394
A dismissal which breaches the general protections provisions could also be unfair. If eligible for either application the person would have to consider which option will deliver the best possible outcome.
An unfair dismissal occurs where an employee makes an unfair dismissal remedy application and the Fair Work Commission finds that:
- the employee was dismissed, and
- the dismissal was harsh, unjust or unreasonable, and
- the dismissal was not a case of genuine redundancy, and
- where the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.
A small business is a business that employs fewer than 15 employees.
An employee is eligible to make an application for unfair dismissal remedy if they have completed the minimum employment period of:
- 1 year – where the employer employs fewer than 15 employees (a small business employer), or
- 6 months – where the employer employs 15 or more employees.
In addition, if the employee’s earnings are more than $158,500 per year, at least one of the following must apply:
- the employee is covered by an award, or
- the employee is covered by an enterprise agreement.
Comparison – unfair dismissal
Coverage: National system employees
Cost for application: $74.90 (can be waived in cases of serious financial hardship)
Lodgment time limit: 21 days
High income threshold: $158,500
Maximum amount of compensation possible: 6 months wages up to total of $79,250