Actions in Respect of Employment

Nature of action Time Limit Period Legislation Provision
Employed in State (Qld) jurisdiction (i.e. Qld public sector employees as that term is defined in relevant legislation and subject to the referral of powers)
Application for re-instatement after unfair dismissal (Qld). 21 days. s 317 (2) Industrial Relations Act 2016(Qld) Application to Qld Industrial Relation Commission within 21 days after the dismissal takes effect, or a further period the Commission allows on an application made at any time.
Application to Queensland Industrial Relations Commission for recovery of unpaid wages or unpaid employer superannuation contributions (claim not more than $50,000). 6 years. s 386(2)(a), (4) Industrial Relations Act 2016 (Qld) An application must be made within 6 years after the amount claimed became payable.
Application to Magistrate for recovery of unpaid wages (no monetary limit[1] but application cannot have already been made under 6 years. s386(2)(b), (4) Industrial Relations Act 2016 (Qld) An application to a Magistrate must be made within 6 years after the amount claimed became payable.
Application to Magistrate for recovery of unpaid employer superannuation contributions (no monetary limit[2] but application cannot have already been made under s 475-477) 6 years. s 396 Industrial Relations Act 2016 (Qld) An application to a Magistrate must be made within 6 years after the amount claimed became payable.
Application for relief of termination on certain grounds under the Fair Work Act 2009 (Cth).

Note: This aspect of the federal legislation extends to all employers and employees due to the effect of the Commonwealth’s external affairs powers. We recommend you take advice before pursuing this course of action.

 Application to be made 21 days after the employment was terminated or such further time as allowed by Fair Work Commission (s 774). Chapter 6, Part 6-4, division 2 (ss 771-783) of the Fair Work Act 2009 (Cth) Application for termination in accordance with s 772 of the Fair Work Act must be made within 21 days unless the Fair Work Commission allows an application made within a further period.

The Fair Work Commission may allow a further period if the Fair Work Commission is satisfied that there are exceptional circumstances, taking into account (s 774):

·         the reason for the delay; and

·         any action taken by the employee to dispute the termination; and

·         prejudice to the employer (including prejudice caused by the delay); and

·         the merits of the application; and

·         fairness as between the person and other persons in a like position
Employed in Federal jurisdiction
Application for relief in respect of termination – unfair dismissal. Application to be made within 21 days after the dismissal took effect (s 394). Chapter 3, Part 3-2, Division 5 (ss 394 -405) of the Fair Work Act 2009 (Cth) Application must be made to the Fair Work Commission within 21 days after the day on which the dismissal took effect or within such period as the Fair Work Commission allows an application to be made after the 21 days. When deciding this, the Commission may consider:

·         the reason for the delay;

·         whether the person first became aware of the dismissal after it had taken effect;

·         any action taken by the person to dispute the dismissal;

·         prejudice to the employer;

·         the merits of the application; and

·         fairness as between the person and other persons in a similar position.

This is only available if a person is “protected from unfair dismissal” under s 382. Note the exclusions to the making of an unfair dismissal application (s 386).
Application for relief in respect of termination – certain grounds (i.e. termination based on discrimination or other prohibited reason).

Note: As an alternative to an unfair dismissal claim, a dismissed employee may need to consider bringing an adverse action/general protection claim (see below). The general protections provisions present a different avenue of redress for dismissed employees from an unfair dismissal claim.

 Application to be made within 21 days after the dismissal took effect or such further time as allowed by the Fair Work Commission (s 366). Chapter 3, Part 3-1, Division 8 (ss 365 – 371) of the Fair Work Act 2009 (Cth) An adverse action/general protections application alleging dismissal must be made within 21 days unless the Fair Work Commission allows an application to be made after the 21 days (s 366).

The Fair Work Commission may allow a further period it is satisfied that there are exceptional circumstances, taking into account (s 366(2)):

·         the reason for the delay; and

·         any action taken by the employee to dispute the termination; and

·         prejudice to the employer (including prejudice caused by the delay); and

·         the merits of the application; and

·         fairness as between the person and other persons in a like position (s 366).
Application to Federal Court, Federal Circuit Court, District Court or Magistrates Court (or other relevant eligible State or Territory Court) for unpaid employer superannuation contributions or unpaid amounts due under the Act. Unpaid amounts which relate to a period more than 6 years before commencement of proceedings are unrecoverable (s 545(5)). s545 Fair Work Act 2009 (Cth) Application for recovery of unpaid wages must be made within 6 years of the date of the underpayment/non-payment.

NB. Unpaid superannuation contributions can be recovered by the ATO. As an employer is only required to keep records for 5 years, the ATO will not take action beyond this point.
Application for relief in respect of adverse action taken against an employee for a prohibited reason when employment remains on foot (s 372). There is no express time limit for applications that do not relate to dismissal (though it is likely that the application must be made within 6 years after the alleged prohibited act (s 544)). for applications that do not relate to dismissal (though it is likely that the application must be made within 6 years after the alleged prohibited act (s 544)).

ss 372 – 375 Fair Work Act 2009 (Cth)

 Application must be made within 6 years after the alleged prohibited act.
  1. While there is no monetary limit prescribed by the Industrial Relations Act 2016, the claim must be within the monetary limit of the Magistrates Court of Queensland ($150,000).
  2. While there is no monetary limit prescribed by the Industrial Relations Act 2016, the claim must be within the monetary limit of the Magistrates Court of Queensland ($150,000).