Unlawful Termination


What is unlawful dismissal?

An employee’s employment must not be terminated for the following reasons:

a)      Temporary absence from work because of illness or injury of a kind prescribed by the Regulations (nb temporary illness is defined in the Regulations as an illness lasting under 3 months);

b)      Trade union membership or participation of trade union activities outside working hours, or with the employer’s consent, during working hours;

c)      Non-membership of a trade union;

d)      Seeking office as, or acting or having acted in the capacity of representative of employees;

e)      The filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

f)        Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

g)      Absence from work during maternity leave or other parental leave;

h)      Temporary absence from work for the purpose of engaging in voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

What is the time for application?

A claim for Unlawful Dismissal should be made to Fair Work Australia within 60 days after the employment was terminated or within such period as to Fair Work Australia allows.

What is the process for pursuing these claims?

As unlawful dismissal relates to unlawful conduct, the matters must ultimately be determined by a court of law. As such, the process for pursuing unlawful dismissal claims is in two parts – firstly a conciliation by to Fair Work Australia and then, if the matter is referred by to Fair Work Australia, a hearing before the Federal Court.