Unlawful Termination

An unlawful termination claim can be commenced by an employee who is not in the national system. For example, those employed by a sole trader or an unincorporated partnership in Western Australia (just to name a few).

A claim for unlawful termination is only available if you are not a National System employee. An unlawful termination happens when you are dismissed primarily for a discriminatory reason or any other protected grounds mentioned below.

While unlawful termination laws can sound like a claim for an unfair dismissal, it is important that you are aware of the differences between this type of claim and an unlawful termination claim.

Firstly, to make this type of claim you must show that the employer terminated your employment agreement on the basis of one of these reasons in the Fair Work Act (Cth):

A person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, nationality or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job);

Temporary absence from work because of illness or injury;

Trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;

Non-membership of a trade union;

Seeking office as, or acting as, a representative of employees;

Being absent from work during maternity leave or other parental leave;

Temporary absence from work to engage in a voluntary emergency management activity; or

Filing a complaint, or participating in proceedings against an employer.

Secondly, you must not be covered by the National Workplace System. Employees not covered by the National Workplace System 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; or

People employed by non-constitutional corporations in Western Australia (for example, employees of sole traders, partnerships, and trusts).

Time Limits

If you think you have a claim, please be aware that applications must be lodged within strict time frames. An application must be lodged with the Fair Work Commission within 21 days after the termination takes effect.

What can you do if you are out of time? The Commission does consider late applications where there are exceptional circumstances. To determine exceptional circumstances, the commission with have regard to the following factors:

The reason for the delay;

Any action taken by the employee to dispute the termination;

Any prejudice to the employer;

The merits of the application; and

Fairness as between the person and other persons in a like position.

Application Process

Once you lodge an application with the Fair Work Commission, a Commission staff member will check the application to determine whether it is valid and then serve the application on your employer.

Following service, the Commission will hold a conciliation to try to resolve the matter between the parties. The conciliation will be private and confidential.

In the event that conciliation is not successful, the Commission will issue a certificate that allows the parties to do one of the following (which must occur within 14 days):

The matter proceeds to the Federal Court or Federal Circuit Court. At court, compensation may be awarded, and penalties can also be imposed on the employer.

If all the parties agree, the matter may determined by the Commission by an arbitration.

A high majority of claims resolve at mediation, without proceeding to a hearing.

What protections do national system employees have against unlawful termination?

If you have been dismissed from work and you believe that you have an unlawful termination claim, but you are covered by the national system, you may make a general protections claim under the Fair Work Act 2009 (Cth) instead.

Under the general protections provisions, you are protected from an employer taking any “adverse action” that is prohibited under the Act, See general protections page for more information.

A general protections claim (involving dismissal) is initially lodged with the Fair Work Commission.

Free Discussion

If you have been dismissed, contact us for a free discussion about any possible unlawful termination or general protections claim you can lodge.