Unlawful Termination: Know Your Rights and Remedies

Learn about unlawful termination and the Fair Work Act's role in protecting employees in our informative guide.

Unlawful termination can disrupt careers and livelihoods, but what does it really mean, and what can you do about it? This article demystifies the concept, aligning it with the Fair Work Act’s standards. You’ll gain insight into whether your termination fits the criteria and learn about the legal avenues for recourse, all without excessive jargon or complexity.

Key Takeaways

  • Unlawful termination occurs when an employer dismisses an employee for reasons violating the Fair Work Act, which includes discrimination, union activities, or raising concerns about workplace rights.
  • Eligibility to lodge an unlawful termination claim under the Fair Work Act depends on several factors, including the length of service and whether the employer has breached general protections provisions.
  • Legal recourse for unlawful termination involves a strict process starting with filing an application to the Fair Work Commission within 21 days, and potentially escalating to court proceedings if conciliation fails.

Defining Unlawful Termination Under the Fair Work Act

It’s important to determine when an employee’s tenure ends whether the dismissal was fair or if it crossed into the territory of unlawful termination. Unlawful termination transpires when an employer dismisses an employee for reasons that collide with the Fair Work Act’s directives. This act, a cornerstone of workplace laws, outlines specific scenarios where termination crosses the line from unfortunate to unacceptable.

For example, if you’re dismissed because of discrimination, union activities, or raising a concern about workplace rights, those instances could be classified as unlawful termination.

Discrimination: Not Just About Performance

Discrimination is a nefarious culprit in the world of unfair dismissal, where an employer dismisses an employee for attributes unrelated to their professional capabilities. Under the Fair Work Act, protected attributes such as race, sex, and sexual orientation form a shield against unfair treatment.

Such dismissals, often deemed harsh unjust or unreasonable, poison the employment relationship and are unequivocally unlawful.

Union Representation and Employee Rights

Echoing through the corridors of justice, the Fair Work Act resoundingly supports the right to union representation. It is a violation of workplace rights for an employer to terminate a person’s employment for union membership, participating in trade union activities, or expressing political opinion.

These protections affirm that one’s employment should not hang in the balance because of their affiliation or non-membership with a union.

Invalid Grounds for Dismissal

Life’s unpredictabilities, such as illness or the responsibilities of new parenthood, should not be grounds for dismissal. The Fair Work Act echoes this sentiment, deeming terminations based on temporary absence due to injury or illness, or for taking parental leave, as unlawful. However, there’s nuance to consider: if illness or injury leads to an absence extending beyond three months, an employer may have a valid reason for termination.

Eligibility Criteria for Unlawful Termination Claims

You might wonder, “Can I challenge an unlawful dismissal?” The answer hinges on several criteria, including coverage under the national workplace relations system as stipulated by the Fair Work Act. Whether you’re a cog in the vast machinery of a national system employee or part of a more localised government sector, these distinctions influence your right to lodge an unlawful termination application.

The Act also mandates a minimum employment duration, allowing only those with a specific length of service to make unlawful termination claims. Furthermore, your employer must have breached general protections provisions, which act as the bulwark against prohibited reasons for terminating an employee’s contract.

Scope of Protection for Various Employees

The Fair Work Act’s protective umbrella spans various employment types, offering shelter to full-time, part-time, and, under certain conditions, casual workers. Casual employees, often seen as vulnerable to the whims of employer dismisses, find solace in the Act if they have been engaged regularly and foresee continued employment.

This assurance underlines that workplace discrimination cannot be justified by employment status.

Understanding the Minimum Employment Period

The minimum employment duration serves as a threshold for unlawful termination claims. For those in larger enterprises, six months of service is the threshold, while small business employees must mark a full year on the job. These periods may include time spent with a previous employer if the business has changed hands, a nuance that can tip the scales for some claimants. It’s essential to consider the employee’s employment history in such cases.

The Role of General Protections Provisions

The Fair Work Act is centred around general protections provisions, which play a critical role in safeguarding workplace rights, industrial actions, and the credibility of workplace representatives. These provisions fortify employees’ positions, ensuring that they can freely exercise their rights without fear of being unfairly dismissed for doing so.

Should an employer dare to violate these protections, the Fair Work Commission stands ready to entertain a general protections dismissal application.

The Legal Process for Contesting Unlawful Termination

When you’ve been unlawfully dismissed, the course to seek justice winds through the legal complexities of the Fair Work Commission. Initiating this journey must occur swiftly, with an unlawful termination application submitted within a mere 21 days after the employment ends. If the initial conciliatory efforts reach an impasse, a certificate of failed resolution is issued, leaving the door ajar for the aggrieved to press forward or withdraw.

Should the employee choose to fight on, the battleground may shift to the courts, where the Federal Circuit Court or the Federal Court becomes the arena for justice.

Initiating an Unlawful Termination Application

The first move for the aggrieved employee should be to quickly file an unlawful termination application with the Fair Work Commission. A fee is required, though financial hardship can see it waived, ensuring accessibility to justice.

With the submission of Form F9, the Commission becomes the arbiter of your fate under the aegis of section 772 of the Fair Work Act 2009.

The Fair Work Commission's Involvement

The Fair Work Commission, a beacon of hope for those unfairly dismissed, offers mediation as a potential salve to the wounds of termination. Its conciliatory efforts strive to bridge divides, but if a chasm remains, the issuance of a certificate marks the conclusion of this stage.

This document serves as a crossroads, beckoning the applicant to either seek arbitration with the Commission’s blessing or to venture into the legal wilds of the court system.

Advancing to Court Proceedings

For those whose resolve is as unyielding as the injustice they faced, the Federal Circuit Court often becomes the venue of choice, offering a more streamlined and cost-effective route than the Federal Court. However, formalities must be observed, with proper forms completed and served to the employer, and the court duly notified of each step taken.

This is where the quest for recompense can truly intensify.

Employer Obligations and Employee Protections

In the wake of a dismissal, employers must be cautious, making sure they comply with the Fair Work Act’s rules concerning dismissal, notice, and final remuneration. The Act’s provisions cast a wide net, capturing various scenarios from redundancy to bankruptcy, each with its respective rights and obligations.

Furthermore, employers must ensure that disciplinary actions are evidence-based and dismissals are not retaliatory against employees who exercise their workplace rights.

Notice Requirements and Final Pay

When the decision to part ways is made, employers must provide written notice, the period of which is influenced by factors such as employee age and length of service. Final pay must be comprehensive, covering everything from outstanding wages to redundancy entitlements, if applicable.

Redundancy, in turn, comes with its own set of standards, particularly when insolvency or bankruptcy is at play.

Genuine Redundancy vs. Unfair Treatment

A genuine redundancy is a byproduct of evolving business needs, not a mask for unfair treatment. It requires that no one else is needed to perform the redundant job and that all due consultation has occurred. If these criteria are not met, the door opens to unfair dismissal claims, with the Fair Work Commission even empowered to reinstate the employee, regardless of the employer’s preferences or pride.

Protecting Freedom from Workplace Discrimination

The Fair Work Act’s general protections provisions are robust guardians against workplace discrimination. Whether an employee is scorned for their social origin, mental disability, or marital status, these protections offer a bulwark against prejudice. They ensure that freedom from discrimination is not just an ideal but a tangible right within the employment landscape.

Preventative Measures for Employers

Being aware is being prepared, and for Australian employers, taking preventative measures is vital to circumvent the risks of unlawful termination allegations. Adhering to the Small Business Fair Dismissal Code and the National Employment Standards is not merely recommended but essential. Participating in a voluntary emergency management activity can also contribute to a safer and more prepared workplace.

These guidelines serve as a blueprint for fair conduct, protecting employers and employees alike.

Small Business Considerations

For small businesses, the stakes are high, yet the rules are clear. Employing fewer than 15 people brings specific considerations for dismissal, particularly in terms of the minimum employment period and redundancy pay.

It is incumbent upon small business owners to adopt transparent processes that mitigate the risks of unfair dismissal allegations.

Adhering to National Employment Standards

From the smallest shop to the largest conglomerate, compliance with the National Employment Standards is non-negotiable. These standards are the bedrock upon which fair and lawful employment practices are built, ensuring that every employer and national systems employee operates under a common set of expectations and protections.

Compensation and Reinstatement Remedies

When justice is served in favour of the employee, the redress might be in the form of reinstatement or compensation. Courts may mandate a return to the former position, or, where appropriate, financial recompense without any cap on the amount, reflecting the severity of the wrongful termination.

Seeking Reinstatement After Unlawful Dismissal

Reinstatement is the preferred resolution, aiming to restore the employee to their rightful place as if the unfair dismissal had never occurred. The Fair Work Commission may direct the employer to reinstate the employee, but only if the business still operates, the employee is capable of performing the duties, and the employment relationship remains tenable.

Financial Compensation for Wrongful Termination

When reinstatement is off the table, monetary compensation enters the conversation. The Fair Work Commission carefully weighs whether compensation is warranted, mindful that it should cover income lost due to the wrongful termination. Yet, employees must understand that compensation is not a certainty; it’s a potential outcome contingent upon the Commission’s judgment.


As we draw the curtains on this thorough exploration of unlawful termination, it’s clear that the legal framework provided by the Fair Work Act is both comprehensive and protective. Understanding the intricacies of what constitutes unfair dismissal, the eligibility for claims, and the process to contest such terminations is fundamental for both employees and employers. Employers must remain vigilant in their adherence to workplace laws and the National Employment Standards, while employees should feel empowered knowing their rights are safeguarded. Above all, the principles of fairness, respect, and lawfulness should guide the employment relationship, ensuring that the workplace is a realm of mutual benefit and protection.

In summary, unlawful termination is a serious breach of employment rights, but it is not without recourse. The Fair Work Act offers a robust defence against wrongful terminations, and the Fair Work Commission is a vital ally in resolving disputes. Whether through reinstatement or compensation, remedies are available to address the wrongs experienced by employees. Let this knowledge be a beacon of hope and a reminder that in the workplace, justice should always prevail.

Frequently Asked Questions

What exactly is considered an unlawful termination?

An unlawful termination is when an employee is dismissed for reasons prohibited by the Fair Work Act, such as discrimination based on protected attributes, union activities, or taking lawful leave. This can include being fired due to pregnancy, race, or other protected characteristics.

Who is eligible to make an unlawful termination claim?

Employees covered under the national workplace relations system with a minimum period of employment and who have been dismissed in breach of general protections provisions are eligible to make an unlawful termination claim.

What role does the Fair Work Commission play in contesting unlawful terminations?

The Fair Work Commission plays a crucial role in handling initial applications, conducting mediation, and issuing certificates if no resolution is reached, which allows the matter to proceed to court. It is an integral part of contesting unlawful terminations.

Can an employer be required to reinstate an employee after an unlawful dismissal?

Yes, if the Fair Work Commission finds the dismissal unfair, they can order reinstatement unless there are mitigating circumstances such as business closure or irreparable working relationships.

Is financial compensation guaranteed if I'm wrongfully terminated?

Financial compensation is not guaranteed if you are wrongfully terminated. The Fair Work Commission will assess the appropriateness of compensation based on the details of the dismissal and its impact on you.