A claim for unlawful termination is available only if you are not a National System employees. Essentially, an unlawful termination happens where you are dismissed primarily for a discriminatory reason.
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While unlawful termination laws can sound like a claim for an unfair dismissal, it is important that you are aware of the differences between this type of claim and an unlawful termination claim. Firstly, to make this type of claim you must show that the employer terminated your employment agreement on the basis of one of these reasons in the Fair Work Act (Cth):
- a person’s 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 (some exceptions apply, such as where it’s based on the inherent requirements of the job)
- 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 as, a representative of employees
- being absent from work during maternity leave or other parental leave
- temporary absence from work to engage in a voluntary emergency management activity
- filing a complaint, or participating in proceedings against an employer.
Secondly, you must not be covered by the National Workplace System. Employees not covered by the National Workplace System 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; or
- People employed by non-constitutional corporations in Western Australia (for example, employees of sole traders, partnerships, and trusts).
If you think you have a claim, please be aware that applications must be lodged within strict time frames. An application must be lodged with the Fair Work Commission within 21 Calendar Days after the termination takes effect.
What can you do if you are out of time? The Commission does consider late applications where there are exceptional circumstances. To determine exceptional circumstances, the commission with have regard to 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.
Please be aware that the commission will only consider ‘exceptional circumstance’ cases 60 days after the termination takes effect. In a recent decision, Reeve v Ramsay Health Care Australia Pty Ltd  FCA 499, the Fair Work Commission was reluctant to take into account the claimant’s reasons for being delayed since they took greater than 60 days to lodge a claim.
Once you lodge an application with the Fair Work Commission, a Commission staff member will check the application to determine whether it is valid and then serve the application on your employer. Following service, the Commission will set up a conciliation and try to resolve the matter between the parties. The Conciliation will be private and confidential.
In the event that conciliation is not successful, the Commission will issue a certificate that allows the parties to move to arbitration. Arbitration involves a Commissioner hearing the matter from both parties and attempting to resolve the dispute. The Commissioner may make any of the following orders:
- Reinstatement of the employee
- Payment of compensation
- Payment of an amount of money to the employee for lost 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 dismiss that application
If arbitration does not result in an agreement, the matter may then proceed to the Federal Court or Federal Circuit Court. At Court, compensation may be awarded, and penalties can also be imposed on the employer.
What protections do national system employees have against unlawful termination?
If you have been dismissed from work and believe that you have an unlawful termination claim yet you are covered by a national system award, you may make a “general protections claims” under the Fair Work Act 2009 (Cth). Under the general protections provisions, you are protected from an employer taking any “adverse action” that is prohibited under the act, such as circumstances of dismissal, exercising a workplace right, or because of a characteristic such as sexual preference or race.
Determining whether you are eligible to be covered by the general protections is significant because a person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.
A general protections claim may be lodged with the Fair Work Commission.
Contact us for further information.