What Exactly is Unlawful Termination and How is it Different to Other Claims?


Some people confuse the unlawful termination with the general protections and the unfair dismissal laws. While the protections of each can overlap, there are distinct differences that people should be aware of if they intend to lodge a claim challenging a dismissal.

Unlawful termination protection applies to an employee who is not covered in the Federal law system. In Western Australia, people who don’t fall in the Federal law system include State Government workers, employees who work for a partnership, and employees who work for a sole trader. Employees who work for a company or the Federal Government fall under the Federal system and should file a general protections claim, not an unlawful termination claim.

The unlawful termination provisions essentially replicate the general protections provisions.

An employee will have the right to lodge an unlawful termination claim if their employment was terminated for a prohibited reason. The prohibited reasons include:

• If the employee is terminated because they took time from work due to an illness or injury.
• They had their employment terminated because they engaged in union activities or they became a member of a trade union.
• The employee did not wish to be a member of a trade union.
• The employee sought a position as an employee representative in some form; an example of this is if the employee wished to be the safety representative in the workplace.
• The employee makes a complaint against the employer arising from some breach of the law or is actively involved in such proceedings. An example would be if the employee makes a complaint to Work Safe for a breach of the safety regulations.
• If dismissal arises from any established discrimination grounds. In Australia, there are well-established laws which state that people are entitled to be protected from discrimination relating to their skin colour, ethnicity, gender, sexual preference, age, disability, marriage status, any responsibility they have to care for their family or children, pregnancy, religious beliefs, political persuasion, country of birth, and a person’s social class or background.
• If an employee takes time off work due to maternity leave or any other time off relating to caring for children.
• If the employee takes time off work to assist emergency volunteers, to assist in volunteer work, or to manage the activities of that organisation, provided the absence is reasonable taking into account all the circumstances.

Unlawful termination laws do not apply to contractors, employees who resigned ( if termination was not a result of the conduct of the employer), and to people who are employed as trainees for a specific period of time and were terminated at the end of their training arrangement.

The unlawful termination laws state there is a time limit of 21 days after the termination takes effect to lodge a claim with the Fair Work Commission. Exceptional circumstances are required to extend this time limit if a claim is filed out of time.

If you have any questions about the contents of this article, please contact us for a no-obligation discussion with one of our unlawful termination lawyers.


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