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Unlawful termination

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Table of contents

On this page

  • Overview
  • Who is covered by unlawful termination laws?
  • What is unlawful termination?
  • Alternatives
  • Time limits
  • What happens once an application has been made?
  • Frequently asked questions

 

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).

Do I need a lawyer?

If you want to lodge a case with us, you will need to complete an application. It is not necessary for you to have anyone else act on your behalf when you come to the Commission, and many people choose to represent themselves. However, we understand that seeking help, including legal advice, can reduce complexity and confusion. If you are thinking about asking someone to help you with you case, please read our Do I need to be represented and Complaints about lawyers and paid agents  pages first.

Workplace Advice Service

The Commission has launched a Workplace Advice Service  to provide access to free legal assistance to eligible persons, including small business employers seeking employment law advice.

Find out more by visiting our Where to get legal advice page.

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.

Find out more

  • The national workplace relations system
  • General protections dismissal

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:

  1. An employee lodges application.
  2. Commission staff members check the application to make sure it is complete and valid.
  3. The employer is served with the application.
  4. 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.
  5. 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:

  1. 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.

  2. 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. 
  3. 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

Who has the onus of proof?

An unlawful termination claim attracts a reverse onus of proof.

This means that once an employee (or an industrial association entitled to represent the employee) makes a claim that the employee was terminated for one or more unlawful reasons, the employer will have to show that the termination was not for one of these reasons.

Are there any circumstances when a person can be dismissed for one of the reasons listed?

An employee's employment can be terminated for one of the reasons listed in section 772 only if the reason is based on the inherent requirements of the job.

For example, in Cucanic v IGA Distribution (Vic) Pty Ltd (2004), an employee brought a claim against his employer for terminating his employment on the basis of an acquired physical disability. It was held that the store worker’s ability to perform heavy lifting and engage in repetitive bending and twisting was considered an inherent requirement of his particular position. Because he could no longer do this, it was not unlawful for his employer to dismiss him.

How do  I make an application?

To make an unlawful termination application, use Form F9 – Application for the Commission to deal with an unlawful termination dispute.

Completed forms can be lodged:

  • by email or fax sent to any Commission office
  • electronically through the Commission's Online Lodgment Service.

An incomplete application cannot proceed until a complete and signed application is received, along with either payment or a separate application for waiver of fee.

Is there a fee?

A person making an application is required to pay an application fee of $74.50. This fee may be waived on the grounds that payment would cause serious hardship. The Form F80 – waiver of application fee should be lodged at the same time as the application form.

How do I respond to an application?

The respondent to an application, usually the employer, will need to lodge a response to the application with the Commission. The respondent must lodge Form F9A – Employer’s response to application for the Commission to deal with an unlawful termination dispute within 7 calendar days after being served with the application, and serve a copy of the form on the applicant.

How can the Commission help?

The Commission is a tribunal, and operates like a court. Commission staff cannot provide legal advice, or give you advice on whether to lodge an unlawful termination application or how to run your case.

Commission staff can give you information on:

  • processes in the Commission
  • how to make an application to the Commission and how to respond to an application that affects you
  • how to fill out forms
  • where to find documents such as legislation and decisions
  • other organisations that may be able to help you.

Find out more

  • Contact us

Where can I get legal advice?

There are community legal centres in each state and territory.

To find out more, please go to the Where to get legal advice page on the Commission’s website.

Updated time

Last updated

14 January 2021

 

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