Fair Work Commission

Introduction

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 the employer did.

If you have been dismissed from your employment you may be able to make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws. Applications under these laws must be received by the Fair Work Commission within 21 days of your dismissal taking effect.

To understand the key differences between these applications, and to decide whether one of these applications may be appropriate for you, see the Termination of employment page.

If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or general protections dismissal laws:

• take our Unfair dismissal quiz to see if you may be eligible under the unfair dismissal laws.
• take our General protections dismissal quiz to see if you may be eligible under the general protections dismissal laws.

What are general protections?

The general protections have been introduced to:

• protect workplace rights
• protect freedom of association
• provide protection from workplace discrimination, and
• provide effective relief for persons who have been discriminated against, victimised, or have experienced other unfair treatment.

A person (such as an employer), must not take any 'adverse action' against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

Adverse actions that can be taken against an employee or potential employee might include:

• dismissing them
• not giving them their legal entitlements
• changing their job to their disadvantage
• treating them differently than others
• not hiring them
• offering them different (and unfair) terms and conditions, compared to other employees.

Workplace rights

Workplace rights include:

• receiving a benefit or having a role or responsibility under a workplace law (such as the Fair Work Act 2009), a workplace instrument (such as a modern award or enterprise agreement), or an order made by an industrial body (such as an order made by the Commission)
• commencing or participating in a process or proceeding under a workplace law or instrument, such as taking court action
• being able to make a complaint or inquiry about your employment.

Industrial activities

A person must not take adverse action against another person because they engaged in or proposed to engage in industrial activity (such as belonging to or participating in a union), including refusing to participate in any industrial action.

Industrial activities cover activities associated with freedom of association including:

• becoming or not becoming a member of industrial associations (e.g. unions and employer associations)
• representing or advancing the views, claims or interests of an industrial association
• taking part in protected industrial action, or
• refusing to take part in industrial action.

Protection from discrimination

An employer also must not take adverse action against an employee because of an attribute of that person, including their:

• race
• colour
• sex
• sexual orientation
• age
• physical or mental disability
• marital status
• family or carer's responsibilities
• pregnancy
• religion
• political opinion
• national extraction
• social origin.

Sham contracting arrangements

An employer must not tell an employee that they are being hired as a contractor if they are really an employee. An employer must not dismiss or threaten to dismiss an employee in order to hire them as an independent contractor doing the same or substantially the same work.

Who do general protections laws apply to?

General protections laws apply to:

• employees and prospective employees
• employers and prospective employers
• independent contractors and prospective independent contractors
• a person who has entered into or who has proposed to enter into a contract for services with an independent contractor
• an industrial association, including an officer or member of an industrial association.

General protections laws provide protection from a range of actions (explained below) taken by, or that affect (or that could or are intended to affect, or are threatened to affect) constitutionally-covered entities, employers in the ACT or Northern Territory, or other trade or commerce employers. They also protect from actions taken in a territory or a Commonwealth place.

A constitutionally covered entity can be any of the following:

• a constitutional corporation, which can either be a trading or financial corporation formed in Australia, or a foreign corporation that does business in Australia. They are often recognisable by having Proprietary Limited, Pty Ltd, Limited, Ltd, Incorporated or Inc. after their name
• the Commonwealth (ie the federal government and its departments)
• a Commonwealth authority (such as the Fair Work Commission)
• a body corporate incorporated in a territory, or
• an organisation.