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What is Unlawful Termination?

What is Unlawful Termination?

Has your employment been terminated on discriminatory grounds? Read our guide on unlawful termination and your rights as an employee.

3rd December 2019

Unlawful termination is a challenging issue in the area of employment law. We understand losing your job can be extremely difficult, especially as it often comes as a shock. Therefore, it is important to know your rights as an employee as there are instances where this is illegal. If you think there were discriminatory reasons behind your dismissal, you may have a legitimate claim. Here is a helpful guide on what is deemed unlawful and what your rights are as an employee. 

Defining Unlawful Termination

Unlawful termination occurs when an employer ceases an employee’s engagement for a discriminatory reason. However, this is in breach of section 772(1) of the Fair Work Act 2009 (Cth). Moreover, distinguishing between unlawful termination and unfair dismissal is important. This is because these phrases are often used interchangeably. On the other hand, unfair dismissal is where an employee is dismissed for reasons which are harsh, unjust or unreasonable. 

What Constitutes Unlawful

Section 772 of the Fair Work Act sets out what equates to unlawful termination. Employment must not be terminated for one or more of the following reasons: 

  • Temporary absence from work due to an illness or injury. 
  • Trade union membership or non-membership. 
  • Seeking office or acting as a representative of employees. 
  • Filing a complaint or participating in proceedings against an employer because of a breach of laws. 
  • Race, colour, sex, sexual orientation, age, physical or mental disability. Marital status, family or carer’s responsibilities, pregnancy, religion, political view, nationality or social origin. 
  • Absence from work due to maternity or parental leave. 
  • Absence from work to engage in a voluntary emergency management activity. 

Am I Protected?

Generally speaking, all employees are able to make a claim. However, according to the Fair Work Commission (FWC), this law does not cover: 

  • Contractors
  • National system employees 
  • Employees who resigned voluntarily 
  • Dismissal of persons employed for a specified time period at the end of that period
  • Employees falling under a general protections dismissal 
  • Trainees dismissed at the conclusion of their training program

What Are Your Rights?

After reading the above, you may feel your employer has ceased your employment unlawfully. If this is the case, you may be entitled to protection obtained through an application. This must be made within 21 days from the date of termination. Then, the FWC should receive your application. They may accept your application where the time limit has expired if exceptional circumstances are found. However, it is important to note that you cannot submit another application under a different law.

You may choose to take your claim to court if you want an order to prevent a party from doing certain acts pending the conclusion of the case. This is called an interlocutory injunction. Because the Fair Work Act is Commonwealth law you can apply to either the Federal Court or the Federal Circuit Court.

Before you lodge an application, we recommend consulting a lawyer to discuss your options and assist in your application. This is important due to the time limit in lodging your application. 

Possible Outcomes for Successful Applications

So, you have worked your way through the process and the court has found your employer unlawfully ended your employment, what’s next? 

The court may: 

  • Issue a fine.
  • Order your reinstatement as an employee.
  • Award compensation for loss suffered.
  • Order an injunction to prevent certain acts.

Final Thoughts

In conclusion, we know it can be disheartening when you have been dismissed for reasons you believe are unfair. Don’t let it slide, as an employee you have rights which protect you from unlawful termination. If you are unsure whether you would have a claim, contact a lawyer to discuss your options.

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

Laura Worrad

Laura is a Legal Intern at Lawpath. She is studying a Bachelor of Laws and a Bachelor of Business Administration at Macquarie University. Laura is interested in Intellectual Property Law and how technology can assist in improving access to justice.