For Unlawful Termination
Unlawful Termination Application
Under the Fair Work Act 2009 (Cth) (the Act), 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.
If the Fair Work Commission (the Commission) is satisfied that an employee (who is protected from unlawful termination) has been terminated for one or more of these prohibited reasons, the employee may be entitled to damages or compensation. Employees who have been unlawfully, can lodge an application to the Fair Work Commission. There is a strict 21 days after your dismissal takes effect to lodge an application. Please also note that 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 termination, you are not eligible to make an unlawful termination application. If you wish to discuss your termination further, please contact us for free advice on 1800 333 666.
Who can make an application?
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.
Similarly, the General Protections provisions, which overlap and encompass the named prohibited reasons for dismissal above, protect employees and prospective employees, employers and prospective employers, independent contractors and prospective independent contractors, a person who has entered into or who has proposed to enter into a contract for services with an independent contractor and an industrial association, including an officer or member of an industrial association. This means certain persons, such as an employer, are prohibited from taking adverse action against other certain persons, such as an employee, because the other person or employee has, or exercises a workplace right or engages in industrial activity.
Making an application
If an employer has terminated an employee and they believe this action was done because of prohibited reason, the employee has 21 calendar days after the termination took effect, to lodge an application in the Fair Work Commission. Once an application is lodged, the Fair Work Commission will set the matter down for a conciliation conference, a private proceeding conducted by an independent conciliator. This conference is an informal method of resolving the dispute in which an independent conciliator will assist the parties in exploring options for resolution and help them to reach an agreement without the need for a formal hearing or court proceedings. If either party objects to a conference, an application for an interim injunction can be made and the matter can proceed directly to court.
The Act provides employees with the right to make a complaint or inquiry in regards to their employment with the employer or to seek compliance with a workplace law or instrument. An employer cannot terminate an employee for exercising this right and making any sort of complaint or enquiry. For example, an employee is allowed to complain about sexual harassment they suffered at the workplace, or participate in such an investigation into this complaint, without fearing that their employer will terminate their employment unlawfully.
Trade union memberships
Temporary absence or illness
The Act provides employees with protection against termination for temporary absence in their employment due to illness or injury. An employer must not terminate an employee because the employee is temporarily absent from work due to illness or injury of any kind. However, the employee will not be protected if the employee’s absence extends for more than 3 months, the total absences of the employee, within a 12 month period, have been more than 3 months collectively and the employee is not on paid personal or carer’s leave for the duration of the absence.
Voluntary emergency management activity
An employee engages in a voluntary emergency management activity if the activity involves dealing with an emergency or natural disaster, the employee engages in the activity on a voluntary basis, the employee was either requested to engage in an activity, or it would be reasonable to expect that such a request would have been made if circumstances had permitted, and the employee is a member of, or has a member-like association with a recognised emergency management body. This falls under Community Service Leave.
A recognised emergency management body is a body that has a role or function under a plan that is for coping with emergencies/natural disasters (prepared by the Commonwealth or a state or territory) a fire-fighting, civil defence or rescue body any other body which is mainly involved in responding to an emergency or natural disaster. This includes bodies such as the State Emergency Service (SES), Country Fire Authority (CFA) or the RSPCA (in respect of animal rescue during emergencies or natural disasters).
An employee is entitled to take community service leave while they are engaged in the activity and for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.
An employee who takes this type of leave must give their employer notice of the absence as soon as possible (this may be after the leave starts) and the period or expected period of absence. An employer may request an employee who has given notice, to provide evidence that they’re entitled to community service leave.