Unfair dismissal under federal law

Unfair dismissal procedures under the Workplace Relations Act 1996 (Cth) apply only to federal employees, that is those who:

are employed by a constitutional corporation (that is, foreign, trading or financial corporations that fall within the meaning of section 51(xx) of the Constitution, which generally include most incorporated and unincorporated bodies formed under the Federal Corporations Act 2001 . This can be a complex legal area and employees who fall in this category should seek advice from a union or a lawyer);
are Commonwealth public sector employees;
are Territory and Victorian employees; or
are employees covered by a Federal award or agreement as waterside workers, maritime employees or flight crew.

A federal employee is precluded from lodging an unfair dismissal claim at the federal level if they were:

serving a qualifying period, generally of six months;
on a fixed terms contract;
engaged for a specified task;
on probation (6 months unless otherwise agreed);
a short-term casual (that is, those who have been working in a regular and systematic way for 12 months and who have had an expectation of ongoing employment);
a trainee on approved fixed traineeships
a seasonal worker;
not employed under an award or workplace agreement and earning a specified rate of remuneration per annum (currently $98,200 — this amount is indexed in accordance with a set formula).
dismissed for “genuine operational reasons”; or
an employee of an enterprise employing fewer than 101 employees.

Applicants need to complete an ‘Application for relief in relation to termination’ form (R27). The completed form must be lodged with the Australian Industrial Relations Commission (AIRC) within 21 days of the dismissal with a $51.40 filing fee. It is possible to seek a waiver of this filing fee in the event that payment of it would cause 'serious hardship'. An application for a waiver should be lodged at the same time as the claim.

Late applications may be accepted if serious injustice would otherwise result. Applications for extension of time may be granted without a hearing in some cases.

The AIRC will initially attempt to settle the dispute by conciliation but failing that will arbitrate.

Further information can be obtained from the AIRC publication ‘Termination of Employment — General Information Guide’.

Where dismissal is found to be harsh, unjust or unreasonable, the AIRC will order reinstatement if practicable and if not compensation. Since Work Choices there is no compensation for injury to feelings or other emotional hurt.