Unlawful termination occurs when an employee’s employment has been terminated at the initiative of the Employer where the termination was based on a failure to give the Employee the required notice or payment instead of notice and/or reasons concerning alleged discrimination including one or more of the following:
- 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 or having acted in the capacity of, a representative of employees;
- filing a complaint, or participation in proceedings, against an employer involving alleged breaches of laws or regulations or recourse to competent administrative authorities;
- race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- refusing to negotiate, sign, vary or terminate an individual transitional employment agreement;
- absence from work during maternity leave or other parental leave;
- temporary absence from work for voluntary emergency management activity
The general protections provisions of the Fair Work Act 2009 (Cth) makes it unlawful for a person to take any adverse action against another because the other person has, has exercised or proposes to exercise, a workplace right. A person who has a workplace right under their terms and conditions of employment can bring a general protections dispute if any adverse action is taken against them.
Unlawful termination claims and general protections disputes are commenced at the Fair Work Commission and must be made within 21 calendar days of the termination coming into effect. Once the claim is lodged, the Employer will be informed of the claim by Fair Work Australia and must respond within 7 calendar days. The matter will then proceed to a telephone Conciliation Conference. If the matter is not resolved at the Conciliation Conference, a certificate will be issued by the Commission and one of the possible paths that the Employee may elect to take is to commence proceedings in the Federal Court of Australia seeking compensation for the unlawful termination. An application must be lodged within 14 days of the issues of the certificate.
If you would like to discuss this or other issues that might arise in the context of your employment or organisation, please contact our Employment Law team.