Fair Work Commission

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.

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:

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