The spider’s web that is the Fair Work Act and unlawful dismissal

I am sometimes asked about the differences in jurisdiction and operation between unlawful dismissal as that term is meant to describe a dismissal which contravenes the general protections of the Fair Work Act (Part 3-1) and unlawful termination under Part 6-4 which contains grounds which renders a dismissal unlawful where its occurrence contravenes the various International Labour Conventions (sec 771) which underpins that Part of the Act as a legitimate exercise of the Commonwealth’s constitutional powers over external affairs.
The distinction is very complicated and the way it is dealt with in the legislation is a dog’s breakfast.
In summary, the Act in this Part renders certain terminations of employment unlawful in circumstances where the facts might support both a general protections breach and a contravention of Part 6-4. The general protections, which of course only apply to national system employers (to justify the constitutional validity under the corporations power), include protection from dismissal where its motivation is (as an example) the exercise of a workplace right (see sec340). Thus adverse action involving a dismissal because an employee exercises a workplace right constitutes a breach of the general protections and is called by most practitioners an unlawful dismissal or termination of employment because that is what it is.
Conversely, under sec 772(1)(e), the Act renders it an unlawful termination of employment if one of the reasons for it is “the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities”, which I suggest would also constitute the exercise of a workplace right under sec340 and thus also be a contravention of the general protections. Similarly, the prohibited discriminations under sub-sec 772(1)(f) if breached would render a dismissal an unlawful termination under that Part even though almost all of the facts which would need to be established for a breach would also constitute a breach of the anti-discrimination general protections (see sec 351).
One of the important distinctions between the two jurisdictions is that the general protections only cover the conduct of national system employers whereas Part 6-4 arguable covers all Australian employers.
In an endeavour to minimize the potential chaos of the lack of comity between the existence and operation of the two jurisdictions, sec 723 provides that a person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. Since an applicant is not entitled to make a general protections application to the Federal Court until he or she has been through the conciliation process conducted by the Fair Work Commission (see for expel Part 6-1, Div 3) it is an interesting question whether an affected employee who might not be interested in a general protections application might be able to initiate an application for unlawful termination even though the facts contended for might render that person “able” but not willing to make a general protections application.