All workers deserve to be treated fairly and with respect. There are special laws that prevent discrimination on the basis of your gender, race, cultural or religious background. And, under Fair Work laws, all workers who have served a qualifying period are legally protected from being sacked unfairly.
In the current difficult economic times, it is especially important that workers know their rights and that employers talk to their staff if their business is not doing well.
But a slow economy is no excuse for employers to act unlawfully.
Changes to permanent contracts should happen through a process of negotiation and consent. Your employer can not simply decide to cut your wage or hours without consultation.
If your job is being made redundant – if your employer can no longer afford for anyone to do it – you should access the full redundancy benefits owed to you.
Even if the economy is not going well, businesses should not dismiss any workers unfairly or on discriminatory grounds.
What is Unfair Dismissal?
Unfair dismissal is when you are sacked in a way that is considered to be harsh, unreasonable or unjust.
Access to unfair dismissal laws is critical to ensure both that workers can challenge unfair termination, and to act as a deterrent to employers who would dismiss workers unfairly and without regard for the difficulty that termination can cause. Unfair dismissal laws also play in important role in creating safe and fair workplaces.
Other than workers who have not served the necessary qualifying period, or who earn over the income threshold, all workers can access unfair dismissal.
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It is very intimidating to receive a warning from work. There are a few things that workers should know about receiving warnings.
Official warnings can be given verbally or in writing. They have the same effect. If the warning is verbal your boss needs to make it clear that it is an official warning.
If your boss has given you a warning legitimately, it has been given to put you on notice that your performance in some area requires improvement.
You are required to be given a reasonable chance to undertake the improvements asked of you. This means being given adequate time to respond and further training if required.
It is commonly thought that a ‘three warning’ rule exists, whereby a dismissal can happen only after three warnings. In fact, only one warning is mandatory.
Warnings should only be given in good faith. They should not be used to intimidate or bully workers, or be motivated by any form of discrimination against a particular staff member.
You can disagree with the content of a warning. If the warning is in a written form, you do not have to sign it. Alternatively, you may wish to write on the warning that you disagree with it and then sign it.
Whether the warning is written or verbal, if you disagree with it, it is a good idea to do so in writing. Where a warning is disputed it will still have effect as a warning.
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Notice of termination
Permanent workers must be given notice of termination if their job is terminated. If they are not, they must be paid out their termination notice at their ordinary rate of pay.
Notice of termination does not apply to casual workers, probationary, seasonal or fixed-term employees, or to workers who earn over $123,300 per year.
The minimum required notice periods are:
|Employee's period of continuous service with the employer at the end of the day that notice is given||Period|
|Not more than 1 year||1 week|
More than 1 year but not more than 3 years
|More than 3 years but not more than 5 years||3 weeks|
|More than 5 years||4weeks|
If you are over 45 years old and have completed at least 2 years of continuous service, then you should add one week to the notice periods listed here.
Check your award or agreement to find out if you should receive more notice than this.
If your job was terminated and you did not receive notice, or you pay in lieu of notice, then you can ask your union for help and you are also eligible to lodge a complaint with the Fair Work Ombudsman.
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Workers have to have served at least 6 months in the same job before they can challenge a dismissal as unfair.
If you work for a business that has less than 15 employees (that is, you work for a small business), then you have to have served for 12 months before you can claim for unfair dismissal.
Employees earning over $123,300 annually do not have access to unfair dismissal laws.
The $123,300 figure cannot include bonuses or commissions unless the employer has guaranteed that these will be paid.
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Lodging an Unfair Dismissal Claim
Unfair dismissal claims can be made to Fair Work Australia (FWA) and must be lodged within 21 days of the date of the dismissal.
There is a fee associated with lodging a claim, of $64.20. In circumstances where it can be shown that the fee would create serious hardship for the person filing the claim, the fee can be waived.
It is also possible to have a claim heard after the 21 day notice period, if the claimant can show exceptional reasons why the application was late.
Discrimination and Unlawful Termination
It is illegal to be discriminated against or sacked on the basis of race, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Unlawful termination occurs where the termination of a job has involved discrimination against an employee.
It also constitutes unlawful termination if you are sacked because of a temporary absence from work due to illness or injury, trade union membership or non-membership, participation in trade union activities outside working hours or, with the employer’s consent, during working hours, being an employees’ a representative, taking parental leave or community leave, or for making a complaint or participating in proceedings against your employer.
If you have experienced discrimination at work you can lodge a complaint for adverse action with the Fair Work Ombudsman (FWO). You can lodge unlawful termination claims with the FWO.
You have 21 days within the date of the unlawful termination to make the complaint.
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Redundancy occurs where the employer no longer requires that a worker’s job be done by anyone, or the employer becomes bankrupt or insolvent.
If you are made redundant you should be have severance pay, as well as the relevant notice period and any accrued leave you have, paid out.
However if at the time of being made redundant your employer employed fewer than 15 workers in permanent or ongoing regular work, then you are not entitled to severance pay.
While awards and agreements may allow for higher rates of severance pay, the following are the minimum rates of severance required under the new laws.
Employee's period of continuous service with the employer at the end of the day that notice is given Period
|At least 1 year but less than 2 years||4 weeks|
|At least 2 years but less than 3 years||6 weeks|
|At least 3 years but less than 4 years||7 weeks|
|At least 4 years but less than 5 years||8 weeks|
|At least 5 years but less than 6 years||10 weeks|
|At least 6 years but less than 7 years||11 weeks|
|At least 7 years but less than 8 years||13 weeks|
|At least 8 years but less than 9 years||14 weeks|
|At least 9 years but less than 10 years||16 weeks|
|At least 10 years||12 weeks|
Redundancies must be genuine. The job that you were doing must genuinely no longer be required to be done by anyone. Where a redundancy is genuine you can’t claim for unfair dismissal or unlawful termination.
More than two million Australians are employed casually. Women account for just over half of all casuals and 40% of casuals are aged 15-24 years, compared with 14% of other employees.
There is no standard definition of casual work but they are usually jobs that are temporary, have irregular hours and are not guaranteed to be ongoing.
Casual workers are entitled to some, but not all, of the benefits given to permanent workers.
Casual employees don't get paid holiday leave or sick leave but they are entitled to a higher rate of pay (casual loading), parental leave and, under the new Fair Work laws, casuals are protected from being sacked unfairly.
As a casual worker you are entitled to a loading on your hourly rate of pay, which means that your hourly pay rate should be more than the permanent workers’ doing the same work as you.
Check your award or agreement to find out what you should be being paid. For more information contact your union or the Union Helpline provides free advice on 1300 486 466.
Casual workers are employed on a ‘shift-to-basis’. You generally have no certainty of ongoing work as a casual worker.
But the casual work relationship should go both ways. If shifts are only casually available, you are not obliged to be always available to your employers. If you are unable to work a shift as a casual worker you should not be forced to work it.
As a casual worker you are not entitled to most forms of paid leave or notice of termination pay. However you are entitled to a safe workplace, freedom from discrimination and unpaid parental leave and, in some circumstances, long service leave, protection from unfair dismissal and the ability to request to be converted to permanent work.
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Casual Pay Rates
Employers should tell employees at the beginning of their employment if they are employed as casual or permanent workers. You should ask your employer how you are employed if you don’t know.
Casual loading is the additional hourly pay that casual workers are paid. The hourly pay rate for casual workers is the equivalent permanent hourly rate plus 15-25% of this hourly rate.
The rate of pay and the rate of loading are determined by the award or agreement that covers the job.
Casual workers should have superannuation contributions paid by their employers if they earn more than $450 per month and are over 18 years old, or, are under 18 years old and work more than 30 hours per week.
For more information on awards and agreements that set out your conditions see the Minimum Wages Fact Sheet.
Casual Leave Entitlements
The loading that casuals are paid is compensation for the lack of paid leave provisions that casuals are entitled to, as well as the insecurity of their employment.
Casual employees do not have access to paid sick leave, annual or holiday leave, or to paid personal or carer’s leave. Hence time away from work will usually result in a loss of pay.
Casual workers can request 12 months of unpaid parental leave if they have been working regular shifts in the same job for 12 months or more, and would have a reasonable expectation of ongoing work.
Casual workers can also access long service leave. The length of service after which this can be taken, and the amount of long service leave the worker should get, will be set out in the award or agreement that covers the work, as well as the relevant State or Territory legislation.
See the Types of Leave Fact sheet and information on Termination Pay for further information on this.
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Penalties and Allowances for Casuals
While there is no guarantee of the following, awards or agreements will often state that casual workers:
- Are entitled to be paid at a higher rate of pay for public holidays worked but are not entitled to be paid for public holidays that they do not work;
- Are entitled to extra pay (penalty rates) for evening, night and weekend work;
- Are entitled to the same rest breaks as permanent workers, including at least a 30 minute unpaid break for every five hours of work; and
- Are entitled to a minimum length of shifts.
Check your award or agreement for the conditions that apply to you.
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Conversion from Casual to Permanent Work
If you have been working regular shifts in the same job for a certain period of time casually, you might be eligible to request to be converted to permanent work.
Permanent conversion clauses are contained in awards and agreements. To find out what conversion entitlements apply to your job, you should refer to the instrument that covers you.
Conversion clauses will often state that if a casual worker has been engaged on a regular and systematic basis for a specified length of time – for instance 6 or 12 months – then the worker has the ability to request to be transferred to permanent work.
Employers can refuse this request only by providing reasonable grounds for the rejection.
In some circumstances where an official conversion has not taken place but a casual worker has been employed in ongoing, regular and systematic work over a period of time, then the worker might be considered to be permanent workers for leave and termination purposes. For information on this please contact your union or phone the Union Helpline for free advice on 1300 486 466.
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Casual Work and Unfair Dismissal
Under the new Fair Work laws casual workers have the same access to unfair dismissal provisions as permanent workers.
Casual workers have the right to lodge an unfair dismissal claim provided that they have worked 6 months in the same job. If the company they work for has fewer than 15 full-time, part-time or regular casual employees (and is hence considered a small business) they will need to have worked for 12 months before they access unfair dismissal protections.
Casual workers do not have access to notice of termination, or pay in lieu of notice of termination.
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Casual workers have the same right to work free from discrimination as all other workers.
It is unlawful to be treated poorly at work, or to be fired, on the grounds of discrimination.
For further information about dismissal or discrimination see the fact sheet Unfair Dismissal, Discrimination and Redundancy.
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Casual Work, Work Safety and Union Membership
Casual workers have the same right to a safe workplace as all workers, and the same right to apply for compensation in the event of an injury at work.
Please see the fact sheet Unsafe Work and Bullying for more information on these issues.
Casual workers also have the same rights as all workers to join and to be represented by a union.
All workers have a right to a safe and healthy work environment. Unsafe working conditions can lead to serious health complications for workers and even workers’ deaths. Unions take safety at work very seriously. One of the central functions of unions is to advocate for workers’ safety to businesses and the Government and to assist individual members who have suffered work injury.
It is an employer’s responsibility to ensure the safety of their worksites and their employees. There should be clear avenues available for employees to express concerns about potential health risks, including employees being encouraged to make any safety concerns known as they occur.
While employers can be investigated and fined for providing unsafe work, emphasis should always be placed upon avoiding injury at work through observance of proper health and safety practices, and through open and responsive communication about workplace safety.
Workers have an important role to play in ensuring their own safety as well, and there are a number of things that workers can do to improve safety at work.
Note that health and safety laws are different depending on which State or Territory you are in and according to your employer.
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Health and Safety Representatives (HSRs)
Health and Safety Representatives, or HSRs, are team members elected by their fellow workmates and their role is to communicate between workers and management about safety issues.
An HSR can speak up for workers’ safety, monitor the safety of the workplace, investigate concerns, and attempt to initiate resolutions of workplace safety threats.
HSRs can also issue Provisional Improvement Notices, or PINs*. The issuing of a PIN occurs where regular communication has not been able to resolve an issue, and it puts the employer on notice that they are required resolve a work safety complaint. If an employer fails to respond to the issuing of a PIN then the HSR can lawfully put a stop to work.
HSRs must not be discriminated against by management as a result of their role and responsibilities.
* Note that the laws surrounding HSRs vary between States and Territories, so the best way to find out what provisions apply at your workplace is to get in touch with your union and your relevant State or Territory Workcover or Safework body.
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Union workplaces are safer
Workplaces in which employees feel too intimidated to speak up about workplace safety are likely to see higher incidences of injury and illness, while workers who enjoy the protections of union membership feel more confident to broach issues of health and safety.
Unions facilitate workers’ safety by providing safety advice for workers, convening workplace meetings to discuss concerns, and if required, by representing workers’ concerns to management through meetings or letters. Where unions can represent workers’ concerns, workers are protected from the threat of being singled out for approaching the boss individually.
Evidence shows that having union members in the workplace increases Health and Safety awareness by up to 70%.
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Reporting incidents and workplace inspections
State or Territory Workcover or Safework bodies should be notified of workplaces that remain unsafe in spite of efforts to improve them, and of and workplace safety incidents. These bodies can send workplace inspectors to investigate workplaces. They can also issue improvement notices and fines to employers who are risking their employees’ safety.
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As a minimum standard you should receive at least one half-hour unpaid break for every 5 hours of work. Most awards and agreements will also provide for 10 minute paid breaks during shifts of 3 or more hours in length on top of this.
Your boss should offer you your break. If they don’t you should feel entitled to request it. Working without breaks can lead to a loss in concentration and fatigue, and if breaks are denied consistently, this can lead to illness and an increased incidence of workplace accidents.
When taking breaks they should be genuine. You should not do any work during your breaks.
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Bullying at work is typically defined as repeated, unreasonable behaviour directed towards an employee or a group of employees that creates a risk to their health and safety.
Bullying presents a threat to the mental, emotional and physical wellbeing of a worker and is dealt with under the same health and safety laws that cover physical dangers. Forms of bullying can include:
- Unreasonable demands or petty targets/key performance indicators
- Restrictive and petty work rules
- Compulsory overtime, unfair rostering or allocation of work
- Constant intrusive surveillance or monitoring
- Having no say in how one’s job is done
- Abusive language
- Being ignored or excluded
- Being threatened with the sack or demotion
If you feel bullied at work you should see a doctor. Bullying can lead to loss of sleep, muscle ache, nausea, depression, anxiety, headaches, digestive difficulties, irritability and anger. Bullying at work also often places strain on a worker’s personal and family life.
It is important that the doctor consulted about these issues has an understanding of the effects of workplace bullying at the safety measures that should be taken to prevent the situation worsening.
If you are being bullied at work your boss needs to know. If there is an elected Health and Safety Representative at your workplace they also should be made aware, as should your union delegate who can help stop the bullying.
Workers being bullied may be able to lodge a Workcover claim to cover time away from work and lost wages.
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Harassment and discrimination
Bullying may take the form of harassment on grounds of discrimination. That is, bullying can be accompanied by a worker being targeted on grounds of their gender, ethnicity, age, health, sexuality, religion, or a number of other grounds. Bullying may also come in the form of sexual harassment.
Workers who are experiencing discriminatory treatment can lodge a complaint with the body that oversees Equal Opportunity law in their State of Territory. Please visit the website www.humanrights.gov.au for more information on Equal Opportunity Legislation, or to find the relevant Equal Opportunity body in your State or Territory.
If you are being sexually intimidated or harassed at work, as well as following the above procedures, you should notify the police.
If harassment at work is taking a physically abusive form it should be reported to the police immediately, and employees should remove themselves from the workplace.
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If you are injured at work, your employer should be notified as soon as is possible in writing — either by an incident book at the workplace, or through a letter.
Workers who have sustained injury should contact their union immediately for assistance. They should also advise the Health and Safety Representative (HSR) at work.
Injured workers should see their doctor as soon as possible and receive certification of their injury. If the worker injured is unable to do their ordinary work as a result, or is unable to do any work, they should receive a Certificate of Capacity from their doctor advocating either light duties or time away from work.
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Workers can lodge compensation claims for the expenses associated with being injured at work.
Most workers fall under the WorkCover system in their State or Territory, although some working for large national employers may be covered by the Comcare system.
A claim form, obtainable from your employer or from Post Offices, should be filled out with your doctor’s assistance and sent to your employer. Your employer is obliged to send the claim form to their insurance company, which will investigate the claim and decide if compensation is payable or not.
A successful claim will result in compensation for lost wages if the worker has had to reduce or cease work, and for the medical expenses associated with the injury.
Workers should not be made to return to work before they are ready, and workers should not be at risk of injuring themselves in the same way when they return to work.
A worker should never be discriminated against for having been injured at work. Under Equal Opportunity Legislation it is illegal to discriminate against a person on grounds of injury or health, or for having made a work-related complaint. To fire a worker in discriminatory circumstances in unlawful termination and can result in prosecution.
For further information about this please see the fact sheet Unfair Dismissal, Discrimination and Redundancy.
From 1 January 2010 a new national workplace relations system began to apply to most employees in Australia. This fact sheet provides details of your rights and entitlements under the Fair Work Act.
Fair Work Laws
As an employee, you are entitled to the following minimum employment terms and conditions:
- For full time employees – a maximum standard working week of 38 hours. Your employer can require you to work reasonable additional hours but you have the right to refuse unreasonable hours. Whether the hours are unreasonable will depend on your position, the arrangement of the hours, health and safety and your family responsibilities. Note that the relevant Modern Award may provide for averaging of hours over more than a week.
- The right to request flexible working arrangements to care for a child under school age, or a child (under 18) with a disability. Your employer must consider the request and can only refuse on reasonable business grounds.
- 12 months unpaid parental (or adoption) leave for each parent after the birth (or adoption) of a child. You also have the right to request a further twelve months unpaid parental leave. Your employer can only refuse on reasonable business grounds.
- Four weeks paid annual leave each year plus an additional week for some shift workers.
- Ten days paid personal or carer’s leave each year that carries over from year to year. You can use this leave when you’re sick or when you need to care for a member of your immediate family or household.
- Two days paid compassionate leave when a member of your immediate family or household dies or is seriously ill. If you require more time off, you can take two additional days of unpaid carer’s leave.
- Community Service Leave for jury service or activities dealing with certain emergencies or natural disasters. With the exception of jury service, this leave is unpaid.
- Long Service Leave. Your existing long service leave is secured by the new federal laws.
- Public holidays and the entitlement to be paid for ordinary hours on those days. Penalty rates for working on public holidays are provided for in Modern Awards and Enterprise Agreements. You have the right to reasonably refuse to work a public holiday.
- Notice of termination and redundancy pay.
- The right for new employees to receive the Fair Work Information Statement.
A complete copy of the National Employment Standards (NES) can be viewed at www.fairwork.gov.au. Please note some limitations may apply — for instance, if you are a casual employee your terms and conditions of employment will be slightly different.
For further information contact your union or phone 1300 4 UNION (1300 486 466).
- Minimum wages
- Penalty rates
- Types of employment
- Flexible working arrangements
- Hours of work
- Rest breaks
- Leave and leave loadings
- Procedures for consultation, representation and dispute settlement.
- Some Modern Awards also contain industry-specific redundancy entitlements
The Modern Award that applies to your industry or occupation will apply to you unless the Award has been replaced by an Enterprise Agreement. If you are a manager or high income employee, the Modern Award may not apply to you, but the NES will.
Transitional arrangements to introduce Modern Awards will apply to wages, penalties and loadings for five years. Your employer is not permitted to use these transitional arrangements to reduce your take home pay.
For further information about Modern Awards or minimum rates of pay during the transition period contact your union or phone 1300 4 UNION (1300 486 466).
Your wages and employment conditions may be set in an Enterprise Agreement that applies at your workplace. An enterprise agreement replaces the Modern Award, but not the NES, which continues to apply.
An enterprise agreement must be genuinely agreed to by the majority of employees at the workplace, and must leave employees better off overall than they would be if the award applied.
There are specific rules relating to the way in which enterprise agreements are made. These rules include:
- Your right to be represented (see further below)
- Bargaining or negotiations must be conducted in good faith
- Rules for taking industrial action
- Employees under the age of 18 require the co-signature of a parent or guardian when making an enterprise agreement
Once approved by Fair Work Australia, your Enterprise Agreement is enforceable and may provide for changes in your terms and conditions of employment.
Individual Flexibility Arrangements
Your Modern Award or Enterprise Agreement must include a flexibility term.
This term allows you and your employer to agree to an Individual Flexibility Arrangement (IFA), which varies the effect of certain terms of the Modern Award or Enterprise Agreement, which applies to you. The IFA must leave you better off overall than you would be if you remained covered by the award or agreement without variation.
You cannot be forced to make an IFA. IFAs are to be in writing and if you are under 18 years of age, your IFA must be co-signed by your parent or guardian. If you change your mind you can cancel the agreement by giving four weeks notice.
- Consulted about changes at your workplace
- Represented (including by a Union) in those consultations
- Represented (including by a Union) in disputes at work
The Small Business Dismissal Code also provides that employees must be given the opportunity to be represented in any discussions that might lead to dismissal.
You have the right to be represented in bargaining for an enterprise agreement. Your employer must recognise and bargain with bargaining representatives.
If you are a Union member, then your Union is your bargaining representative. The Union can attend meetings and negotiate directly with your employer on your behalf.
If you are not a Union member, you can nominate the Union as your bargaining representative. The Union can become involved at any stage in the agreement-making process provided the Union has at least one member at your workplace.
You have the right to invite a Union Official to your workplace to provide advice and assistance.
Union Officials can enter a workplace, even where the employer opposes their entry, provided the official has a valid entry permit and has provided sufficient notice of their intention to enter the premises.
Union Officials may visit your workplace for discussions with workers and to investigate suspected contraventions of workplace laws or occupational health and safety matters.
- You have a workplace right
- You make an inquiry or complaint in relation to your employment or workplace rights
- You join the Union or participate in lawful activities such as voting on an agreement or taking protected industrial action
- You perform a representative role in your workplace. This includes occupational health and safety representatives, harassment officers and union delegates
- Of your race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
It is unlawful for an employer to place undue influence or pressure on you to agree to change certain employment arrangements. For example your employer can not pressure you to sign an Individual Flexibility Arrangements.
It is unlawful for an employer to coerce you to exercise your workplace rights in a particular way. For example your employer can not pressure you not to take leave to which you are entitled.
An employee, Union or Fair Work Inspector, can enforce a workplace right. Please note that applications relating to General Protections which involve a dismissal must be lodged with Fair Work Australia within 60 days.
If you have experienced unfair treatment, you should contact your union or phone 1300 4 UNION (1300 486 466).
Termination of Employment
If your employment is terminated, including through redundancy, resignation or dismissal, you are entitled to receive any outstanding employment entitlements. This may include:
- Outstanding wages
- Payment in lieu of notice
- Payment for accrued annual leave
- Long service leave
- Any applicable redundancy payments
Your employer should not dismiss you in a manner that is ‘harsh, unjust or unreasonable’.
If this occurs, it may constitute ‘unfair dismissal’ and you may be eligible to apply to Fair Work Australia for your job back or compensation.
All employees are protected from unfair dismissal provided they have served the qualifying period. The qualifying period is 12 months for small business employees and 6 months for everyone else.
Please note that unfair dismissal applications must be lodged within 21 days of dismissal. There are special provisions that apply to employees in small businesses, including the Small Business Fair Dismissal Code.