Unlawful Termination
An unlawful termination claim is for employees who are not in the national system: in WA, for example, people employed by a sole trader, a partnership, a WA government agency or a WA local government. It protects against dismissal for discriminatory and other prohibited reasons.
An unlawful termination claim under Part 6-4 of the Fair Work Act 2009 (Cth) is mainly for employees who are not in the national system. It protects you from being dismissed for a prohibited reason, even though your employment is otherwise governed by state law.
It is different from an unfair dismissal claim. The question is not whether the dismissal was fair, but whether a reason for it was one of the reasons listed in s 772 of the Fair Work Act:
- your race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin (with exceptions, for example where the reason is the inherent requirements of the job);
- temporary absence from work because of illness or injury, of the kind set out in the regulations;
- trade union membership, or taking part in union activities outside working hours or, with the employer’s consent, during working hours;
- not being a union member;
- seeking office as, or acting as, a representative of employees;
- absence from work during parental leave;
- a reasonable temporary absence to take part in a voluntary emergency management activity; or
- filing a complaint, or taking part in proceedings, against your employer about an alleged breach of laws or regulations.
You generally use this claim if you are not covered by the national workplace system. In Western Australia that includes people employed by:
- a sole trader, a partnership of individuals, or a trust with individual trustees;
- an organisation that is not a trading or financial corporation, such as some grant-funded charities and associations;
- the WA public sector (government departments and most agencies); and
- WA local governments, which left the national system on 1 January 2023.
Outside WA, most state public sector employees in New South Wales, Queensland, South Australia and Tasmania, and local government employees in New South Wales, Queensland and South Australia, are also outside the national system.
Two cautions. First, if you are entitled to bring a general protections claim about the dismissal, you cannot bring an unlawful termination claim (s 723). That matters for some WA councils that are trading corporations, where a general protections claim may still be open. Second, WA state system employees also have state claims, such as unfair dismissal in the WA Industrial Relations Commission (28 days) and a complaint under the Equal Opportunity Act 1984 (WA). See our WA state system guide and get advice about which route is best.
Time Limits
An application must be lodged with the Fair Work Commission within 21 days after the termination took effect (s 774). The application fee is $92.70 for 2026-27, and it can be waived for serious hardship.
What if you are out of time? The Commission can accept a late application only in exceptional circumstances. It considers:
- The reason for the delay;
- Any action you took to dispute the termination;
- Any prejudice to the employer;
- The merits of the application; and
- Fairness as between you and other people in a similar position.
Application Process
You apply to the Fair Work Commission on Form F9. The Commission checks the application and sends it to your employer, which can respond on Form F9A.
From 7 July 2026, you can apply if you allege that your employment was terminated for a prohibited reason, for example where your employer says you resigned or that your contract simply ended. The 21 days run from the alleged termination (s 774), and the Commission does not decide at that stage whether there was a termination (ss 773, 776(1A)). That has to be proved if the matter goes to court.
The Commission then holds a conference to try to resolve the matter. It is private and confidential.
If the matter does not resolve, the Commission issues a certificate. Then:
- you can start proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) within 14 days after the certificate issues (s 778). The court can award compensation, order reinstatement and impose penalties on the employer; or
- if both parties agree, the Commission can decide the matter by arbitration (Form F9B).
Many claims resolve at the conference, without going to a hearing. The Commission’s page on unlawful termination explains the process.
What protections do national system employees have against unlawful termination?
If you are covered by the national system, you will usually make a general protections claim under the Fair Work Act instead. It covers the same kinds of reasons and more, including dismissal because you made a complaint or inquiry about your employment.
Under the general protections, an employer must not take adverse action against you for a prohibited reason. See our general protections page for more information.
A general protections claim involving dismissal is lodged with the Fair Work Commission (Form F8), also within 21 days.
Free Discussion
If you have been dismissed, contact us for a free discussion about any possible unlawful termination, general protections or WA state system claim. The deadline for Fair Work Commission claims is 21 days.
Case studies
How the law played out in real cases
Published decisions of courts and tribunals, summarised in plain English from the published decision. Every case turns on its own facts.