Fair Work Commission

A person has been dismissed from their employment when:

• their employment has been terminated at the initiative of the employer, or
• they have resigned their employment but the resignation was forced by something their employer did.

Types of application

The Fair Work Commission can provide assistance for employees that have been dismissed from their employment.

The Fair Work Commission can only provide assistance to you if you make an application to the Commission by completing the appropriate form.

If you have been dismissed from your employment, there are 3 types of applications that may be relevant to your circumstances, though you can only lodge 1 of these applications with the Commission.

It is important to note that the application must be received by the Commission within 21 days of your dismissal taking effect.

Which type of application is right for me?

There are 3 types of applications that should be considered if you have been dismissed from your employment.

1. An unfair dismissal application (Form F2)

This may be the most appropriate application for you if:

• you believe there was not a valid reason for your dismissal
• you were not notified of the reason before you were dismissed
• you were not given an opportunity to respond to the reason for your dismissal before you were dismissed
• you had not previously been warned about unsatisfactory performance, or
• in all the circumstances, your dismissal was harsh, unjust or unreasonable.

To be eligible to lodge this type of application:

• you must to have been employed for 6 months in a large business or 12 months in a small business (the minimum employment period)
• you must have been employed by a national system employer
• you must have been terminated at the initiative of your employer, or forced to resign because of something your employer did.

2. A general protections dismissal application (Form F8)

This may be the most appropriate application for you if you believe you were dismissed from your employment because of your:

• race
• colour
• sex
• sexual orientation
• age
• mental or physical disability
• marital status,
• family or carers responsibilities
• pregnancy
• religion
• political opinion
• national extraction, or
• social origin
• OR because you were temporarily absent from work because you were sick or injured
• OR because you joined or did not join a trade union or participated in industrial activities
• OR because you exercised or proposed to exercise a workplace right (eg by making a complaint or inquiry in relation to your employment, such as querying a pay rate)

To be eligible to lodge this type of application:

• your employment must have been terminated at the initiative of your employer, or you were forced to resign because of something your employer did
• you must believe that you were dismissed because of one of the reasons outlined above.

This application is not about the fairness or otherwise of your dismissal, it is about a dismissal that has occurred in breach of a protection set out in the Fair Work Act 2009.

Generally the Fair Work Commission only has a narrow role in relation to these types of disputes, and that is to facilitate a conciliation conference.

If you wish to have the matter determined to finality, you may need to commence an action in the Federal Court. You cannot commence an action in the Federal Court until after you have been through the Fair Work Commission General Protections processes.

3. An unlawful termination application (Form F9)

A small number of employees are covered by the unlawful termination provisions of the Fair Work Act. These include:

• state government employees in New South Wales, Queensland, Western Australia, South Australia and Tasmania
• local government employees in New South Wales, Queensland and South Australia
• people employed by non-constitutional corporations in Western Australia (for example, employees of sole traders, partnerships and trusts).

In many ways, the unlawful termination laws and general protections laws are similar.

If you can make a general protections dismissal application because you are covered by the general protections laws, you cannot make an unlawful termination application.

More information about unlawful termination applications is available on the Unlawful termination page

Examples – which form to use

Sally has been employed by ADE Pty Ltd for 5 years as a sales representative.

A new manager commenced work in the business. Three days later he called Sally into his office and stated "I don’t like the way you deal with customers. I am letting you go. I will pay you your entitlements next week. Please return the key and don’t come back again." Sally tried to explain that she had always dealt with customers politely. Her manager stated: "Sally, I have made my decision, please leave the premises immediately."

Sally reviewed the information on the Fair Work Commission's website. She felt her dismissal was unfair because:

• She had always dealt with customers in a professional manner.
• She had not been told of the reason for her dismissal until after the decision had been made to dismiss her so she was not able to respond to her manager's concerns.
• She had not ever received a warning about her performance or interactions with customers.
• She felt that her dismissal came out of the blue and in all the circumstances it was harsh, unjust and unreasonable.

Sally made an application for unfair dismissal using Form F2.

Simon has been employed by ADE Pty Ltd for 5 years as a sales representative.

Simon suffered a bad injury at football one Saturday, and as a consequence was unable to work for a week. He obtained a doctors certificate the day that he sustained the injury and emailed it to his manager. His manager called him the following day, and stated "Simon, I can’t afford not to have you in the office in the next week. Either you get over your injury and come in, or I am letting you go." Simon explained that he was covered by a medical certificate and the doctor had advised him not to work for a full 7 days. His manager stated "well, in that case Simon, I’m terminating your employment. You will receive your entitlements in the next pay run."

Simon reviewed the information on the Fair Work Commission's website. He felt his dismissal was in breach of the protection relating to temporary absence from work due to illness or injury, as his manager had dismissed him because he was absent from work due to injury.

Simon made an application for general protections dismissal using Form F8.

Redundancy

An employee can become redundant when an employer no longer needs that person's job to be performed by anyone. This is usually because of changes to the operational requirements of the workplace.

If the role to be made redundant is covered by an award or agreement, the consultation provisions in that award or agreement should be followed.