What is unlawful termination? Understand your workplace rights
Understanding unlawful termination helps protect your workplace rights under Australian law. Unlawful termination is when your employment contract is terminated – i.e. you are fired – for reasons that violate the Fair Work Act. Wrongful termination reasons include discrimination, union activities, getting pregnant or whistle-blowing.
People make unfair dismissal applications to the Fair Work Commission following a range of scenarios, like disagreeing with why they were let go from their job, or because they’ve been made redundant and believe it wasn’t for genuine reasons, says Susan Sadler, Director at Red Wagon Workplace Solutions.
“An individual may feel the way in which they were let go was not fair, or they may have resigned because they felt they couldn’t stay working for an employer as a result of something their employer did,” Sadler says. But these aren’t cases of unlawful termination or unfair dismissal.
What is unlawful termination in Australia?
According to employment laws in Australia, unlawful termination is when an employer ends your employment without just cause. The reason for termination must contravene the Fair Work Act, which includes discrimination, taking sick leave, unionising, and standing up for your rights in the workplace.
Do you fit the criteria?
Both ‘unlawful termination’ and ‘unfair dismissal’ are terms often thrown about, but Sadler says there are a number of conditions that must be met for someone to be eligible to make an unfair dismissal claim.
If eligible, you can make an application to the Fair Work Commission under either unfair dismissal or unlawful termination (general protections) dismissal laws.
“Some applicants simply ignore the eligibility requirements and submit a claim anyway. The eligibility of a claim is always considered first, and the application may be dismissed on those grounds without the detail of the dismissal ever being argued,” Sadler says.
The eligibility criteria for an unlawful termination or unfair dismissal claim are:
- An application must be lodged within 21 days of the dismissal taking effect.
- The employee must be covered by the National workplace relations system.
- The applicant must have been dismissed.
- The employee must meet eligibility criteria such as a minimum employment period.
“These criteria are the first step. From there, you’re going to need evidence and supporting documentation to justify your claim. If you don’t have evidence and your claim is based on your disagreement with what your employer did, you are unlikely to have a successful case,” she says.
Unlawful termination vs unfair dismissal
It’s crucial that you file the correct type of claim for your situation. Depending on your circumstances, you may be eligible to submit either an unfair dismissal or an unlawful termination (general protections) dismissal claim. However, you can only file one claim so it’s important for you to understand which is more relevant to your situation.
The two claim types are very similar, the key difference comes down to the reason for dismissal:
- An unlawful termination (general protections) claim is relevant when the reason for the dismissal (or any unfair action) was based on discrimination, unlawful grounds or following the employee exercising, or planning to exercise a workplace right. Examples may include taking sick leave, getting pregnant, taking part in industrial action, or seeking a pay rise to meet minimum standards.
- An unfair dismissal claim is relevant when the reason for dismissal is considered unfair, harsh or unjust, or the termination process was unfair.
“I’ve seen claims lodged as unlawful terminations/general protections that have been unsuccessful, but had they been filed as an unfair dismissal they would have had greater chance of success and vice versa,” Sadler says.
What to do after unlawful termination
If you believe you’ve been unlawfully terminated from employment, there are certain steps you can take – you may be eligible for compensation or may be able to get your job back.
Read up on unlawful termination at the Fair Work Commission website.
Contact Fair Work Australia or seek private legal counsel.
If you decide to file a claim, gather all the necessary information, then fill out an application to dispute the termination.
Wait for further instruction from the Fair Work Commission.
Get advice before lodging an unlawful termination claim
While Sadler says no single resource can tell you whether your claim has merit, if you are likely to win, or how much compensation could be awarded to you, the Fair Work website is an excellent place to start. The site features an online quiz to assess your eligibility to make either an unfair dismissal or unlawful termination/general protections claim, and fact sheets to explain the process. They also provide a guide to working out if you are eligible for free legal advice.
“The Unfair Dismissal Benchbook is an up-to-date resource that explains the entire process and application of the Fair Work Act and provides examples on what is and isn’t a reasonable claim,” Sadler says.
At the end of the day, making an unfair dismissal or general protections claim is a decision you should not take lightly. The preparation and documentation process for illegal dismissal is detailed, and you have to relive the details of what happened at your workplace.
“This can be stressful for the individual and their family and there is never any guarantee of the outcome,” Sadler says.
That said, if you believe that you have been unfairly or unjustly dismissed, you are within your rights to pursue legal action and there are resources to support you in doing so. For more information visit the Fair Work Commission.
FAQ
What’s the difference between unfair dismissal and unlawful termination?
Unlawful termination is when you’ve been let go from a job for a reason that violates the Fair Work Act, which can include taking sick leave, getting pregnant, your race or ethnic background, unionising or standing up for your workplace rights.
Unfair dismissal is when you feel the way you were let go from your job could be considered unfair, harsh or unjust, but not against the Fair Work Act.
How do I prove unlawful termination?
You need to be able to show that you were let go from your job for a reason prohibited by the Fair Work Act.
How do I file a claim of unlawful termination?
You can file a claim on the Fair Work Commission website, request free legal aid, or contact your own legal counsel to help you file a claim. You must file a claim within 21 days of losing your job.
