This is an extract from the Fair Work Commission’s general protections benchbook which deals with the provisions of the Fair Work Act about what is called “Unlawful termination”, one of the statutory remedies provided for by the federal system of industrial relations regulation. In essence proceedings for unlawful termination are taken when a general protections claim cannot be pursued for jurisdictional reasons.
“Unlawful termination is one of the 3 areas of dismissal for which the Fair Work Act provides remedies. Unlawful termination applications are not available to many employees who have been dismissed. Check if you are eligible before you apply.
What is unlawful termination?
Unlawful termination is similar to a general protections dismissal: it is when an employer ends a person’s employment, and the reason is or includes a reason that is prohibited by the Fair Work Act.
You may be eligible to make an unlawful termination application if you are not a national system employee.
If you are a national system employee but are not entitled to make a general protections dismissal application because the reason or reasons for your dismissal are not prohibited by the general protections provisions you may also be eligible to apply.
When you can and cannot apply for unlawful termination
Unlawful termination provisions protect people who are not entitled to make a general protections dismissal application. You must not apply for unlawful termination if you can apply under the general protections provisions of the Fair Work Act.
You can make an unlawful termination application if:
you are dismissed from your job AND
your employer dismisses you because, or for reasons which include a prohibited reason AND
you are not a national systems employee OR you are a national system employee and you are not entitled to make a general protections dismissal application because the reason or reasons for the dismissal are not prohibited reasons under the Fair Work Act.
Prohibited reasons
Your employer must not terminate your employment for any of the following reasons:
you are temporarily away with illness or injury
you are (or are not) a member of a trade union
you participated in trade union activities outside business hours
you participated in trade union activities during business hours with your employer’s consent
you are seeking office as, acting or have acted as, a representative of employees
you filed a complaint or participated in legal proceedings against the employer
your race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
you take maternity or other parental leave
you are engaging in a voluntary emergency management activity and are away from work temporarily where the absence is reasonable in all the circumstances.
See Section 772 of the Fair Work Act 2009.”