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Unlawful termination
adjournment
To end proceedings or to suspend them to another time or place.
appeal
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
bullying at work
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
- a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
bullying policy
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Commission
Abbreviation for Fair Work Commission.
Commonwealth
Refers to the Commonwealth government or an Australian territory.
conference
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
- a proprietary limited company
- a foreign corporation
- a trading or financial corporation formed within the limits of the Commonwealth
- the Commonwealth
- the Commonwealth authority
- a body corporate incorporated in a territory
- a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
decision
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
directions
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
evidence
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
Full Bench
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
harassment
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
hearing
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
jurisdiction
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
jurisdictional objection
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
matter
A case or legal proceeding before the Commission.
mediation
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
Member
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
non-constitutional corporation
An entity that is not a constitutional corporation. The following are not constitutional corporations:
- sole traders
- partnerships
- some state government bodies
- corporations whose activities do not include significant trading or financial functions (e.g. some charities).
order
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
outcome
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
partnership
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
party
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
principal
A person or business that has entered into a contract for services with an independent contractor.
private enterprise
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
procedural fairness
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
pty ltd
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job, and
- maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
Rules
service/to serve
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
sole trader
An organisation in which one person is responsible for the business.
WHS
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
witness statement
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
worker
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
- an employee
- a contractor or subcontractor
- a person employed by a labour hire company who is working at a particular business or organisation
- an outworker
- an apprentice or a trainee
- a work experience student
- a volunteer.
Only people who are considered to be workers may apply for an order to stop bullying at work.
workplace
A place where a person performs work.
workplace bullying
See bullying at work.
Overview
An employee (or an industrial association entitled to represent the employee) who is:
- not a national system employee, or
- a national system employee who is not eligible to make a general protections application
may make an unlawful termination application to the Commission if their employment has been terminated and they believe that the termination was in contravention of section 772(1) of the Fair Work Act 2009 (the Act).
Who is covered by unlawful termination laws?
In most cases employees not covered by the national workplace system will be covered by unlawful termination laws. These types of employees 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
- people employed by non-constitutional corporations in Western Australia (for example, employees of sole traders, partnerships and trusts).
Employees who are covered by the national workplace system, but who are not eligible to make a general protections application, may be able to make an application for unlawful termination (see McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation [2015] FWC 6768).
Unlawful termination laws do not cover:
- employees who are eligible to make a general protections application
- contractors
- employees who resign and were not forced to do so as result of their employer's conduct
- people who were employed under a contract of employment for a specified period of time, a specified task, or for the duration of a specified season and who are dismissed at the end of the period, task or season
- trainees who were employed for a specified period of time and who were dismissed at the end of the training arrangement.
What is unlawful termination?
Section 772 of the Act says that an employer must not terminate an employee’s employment for one or more of the following unlawful reasons:
- temporary absence from work because of illness or injury (within the meaning of the Fair Work Regulations 2009)
- trade union membership or participation in trade union activities outside working hours (or during working hours with the employer’s consent)
- non-membership of a trade union
- seeking office as, or acting or having acted in the capacity of, an employee representative
- the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities
- race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
- absence from work during maternity leave or other parental leave
- temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
Note: Many of the provisions of section 772 overlap with the general protections provisions set out by the Act. If you are eligible to make an application to a court under the general protections provisions in relation to the same dismissal, you are not eligible to make an unlawful termination application.
Alternatives
Non-national system employees may be eligible to make an application in relation to their termination under state laws, depending on the circumstances of their case. Please note that an employee must not make both an unlawful termination application and an application under state laws for the same termination.
Please contact the relevant state or territory industrial relations commission for more information about the termination laws and tribunal processes in each state or territory. Their websites are listed in the related sites section on this page. Note that there are no state or territory industrial tribunals in Victoria, the Northern Territory and the Australian Capital Territory.
If you are not sure which application to make, you may wish to seek independent legal advice.
Time limits
An unlawful termination application must be made within 21 calendar days after the termination takes effect.
If the application is lodged after 21 calendar days, it will be deemed out of time. The Commission may allow a late application if it is satisfied that there are exceptional circumstances. In determining whether there are exceptional circumstances, the Commission takes into account 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.
A person making an application for unlawful termination cannot also lodge an application in respect of the same dismissal under another law. This includes unfair dismissal and general protections applications, and applications under federal and state anti-discrimination and equal opportunity legislation.
If the person making the unlawful termination application is in the wrong jurisdiction, and the application is withdrawn or dismissed by the Commission for that reason, they may still be eligible to bring an unfair dismissal or general protections application. A person making an unfair dismissal or general protections application involving a dismissal must also lodge their application within 21 calendar days after the dismissal took effect, or be able to successfully argue that there are exceptional circumstances for making the application out of time.
What happens once an application has been made?
The key steps in the unlawful termination process are:
- An employee lodges application.
- Commission staff members check the application to make sure it is complete and valid.
- The employer is served with the application.
- Generally, the Commission will deal with the dispute by holding a conference. The aim of the conference is to try to help the parties resolve the matter themselves. A conference is a private and confidential process where a Commission Member helps the parties to resolve their dispute by agreement.
- If the Commission is satisfied that all reasonable attempts to resolve the dispute have been unsuccessful or are unlikely to be successful, a certificate will be issued.
After a certificate has been issued, there are three possible paths:
- The parties can notify the Commission that they agree to the dispute being arbitrated. Arbitration means that the Commission will hear and determine the dispute. The Commission may then order:
- reinstatement of the employee
- payment of compensation to the employee
- payment of an amount to the employee for remuneration lost
- that the continuity of the employee’s employment is maintained, and/or
- that the period of the employee’s continuous service with the employer is maintained.
The Commission may also dismiss the application.
- If the parties don't agree to arbitration, the employee can make an application to the Federal Court or Federal Circuit Court to deal with the matter. The employee has 14 calendar days after the date the certificate was issued to apply to the courts to hear the case.
- The employee may decide not to pursue the matter any further. They can choose to discontinue the matter by lodging a Form F50 – Notice of discontinuance.
Frequently asked questions
Updated time
Last updated
01 July 2019
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