Fair Work; unfair, wrongful and unlawful dismissals Part 3

The general protections under the Fair Work Act are principally concerned with action which is taken by a constitutionally covered entity, a “trade and commerce employer” and action in a Territory or Commonwealth place. This is because most of the Fair Work Act is validated by the corporations power contained in the Australian Constitution.

However under Div 2 of Part 6-4 of the Act, provision is made for unlawful dismissal in its strictest sense and as sec 771 makes clear, the constitutional validity of these provisions is underpinned by the Commonwealth’s external affairs powers in the Constitution and Australia being a signatory to a number of international labour conventions.

Sec 772 of the Act contains the prohibited reasons for dismissals, and pretty much repeats the general protections, for example temporary absence from work because of illness or injury.

Interestingly, an unlawful dismissal application of this kind (ie one distinguished from an unlawful dismissal such as unlawful adverse action which includes a dismissal) is not subject to the same procedural restraints as a general protections application. For example, if an employee is employed by a national system employer but is not able to make a general protections application, he or she may nonetheless be able to make an unlawful dismissal application; see McIntyre v Special Broadcasting Services Corporation T/A SBS Corporation (2015) FWC 6768 where the Fair Work Commission was dealing with a case in which an applicant sought to commence proceedings for unlawful dismissal because a general protections’ application could not have succeeded because New South Wales State legislation did not render it unlawful to discriminate against a person on the basis of political opinion (see sec 351(2)(a)).