Resource ● Last updated 30 October 2024 ● 10 min read
How to take an unlawful termination claim to court
In this article
Print & save
Share
What is this resource?
This resource explains what unlawful termination is, who is eligible to make a claim, and the application process.
Unlawful termination laws apply to all employees in Australia. However, you may not be able to make an unlawful termination claim if:
- you are able to make a general protections court application; or
- you are covered by the national workplace relations system.
What is unlawful termination?
The unlawful termination laws are set out in Part 6-4 Division 2 of the Fair Work Act 2009 (Cth) (the FW Act).
The FW Act says that an employer must not terminate an employee on any of the following prohibited grounds:
- temporary absence from work due to illness or injury;
- union membership or participating in union activities outside of working hours, or with the employer’s consent during working hours;
- non-membership of a union;
- acting or seeking to act as an employee representative;
- filing a complaint or participating in proceedings against an employer;
- race, colour, physical or mental ability, age, sex, sexual preference, gender identity or intersex status, experience of family violence, family or caring responsibilities, pregnancy or breastfeeding, marital status, religion, political opinion, national extraction or social origin;
- absence from work due to maternity leave or parental legal; or
- temporary absence due to involvement in a voluntary emergency management activity
Do the unlawful termination laws apply to me?
The unlawful termination laws apply to all employees in Australia.
However, you cannot make an unlawful termination application if you are able to make a general protections court application. Generally, this means that only employees who are not covered by the national workplace relations system can make an unlawful termination application.
Therefore, you can only make an unlawful termination application if:
- You are:
- not a national workplace system employee; OR
- a national workplace system employee, but you are not entitled to make a general protections application because the reason you were dismissed is not a prohibited reason under the general protections provisions of the FW Act; AND
- You are dismissed from your job; AND
- Your employer dismisses you because, or for reasons which include a prohibited reason listed under section 772.
You are not covered by the national workplace relations system (and you can therefore make an unlawful termination claim) if you:
- work in the state public sector or local government in New South Wales, Queensland or South Australia;
- work in the state public sector or for a non-constitutional corporation in either local government or private industry in Western Australia;
- work in the state public sector in Tasmania; or
- are a law enforcement officer or an executive in the public sector in Victoria, or a member of the Police Force in the Northern Territory
For more information, see the Fair Work Commission page on national workplace relations system coverage.
When can I take my unlawful termination claim to court?
If you want an order that another party do or stop doing something until your claim is finalised (known as an interim injunction) you can take your claim to court straight away.
In other cases, you need to start your claim at the Fair Work Commission (FWC).
You must pay a FWC application fee unless you can demonstrate serious financial hardship. See the FWC’s website for guidance and check their Fees and costs page for the current application fee.
The FWC will try to resolve your dispute by mediation, conciliation, making a recommendation or giving an opinion. Any conference must be conducted in private, and they are generally confidential. See the FWC website for further guidance on the conference process.
If the FWC’s attempts to resolve your dispute are unsuccessful, they will issue you a certificate. The FWC must let you know at this stage if you they think you do not have a reasonable prospect of success.
Once the FWC has issued a certificate:
- if both parties agree, you can notify the FWC that the parties agree to resolve the dispute by arbitration (see the FWC’s website for further guidance on consent arbitration); or
- if you or the other party does not agree to resolve the dispute by arbitration, you can make an application to court.
You can apply to the Federal Circuit and Family Court (FCFCoA) or the Federal Court (FCA). The Federal Circuit and Family Court is less formal, and you may not have to wait as long before your matter is heard by a judge.
Time Limits – applying to the Fair Work Commission (FWC)
- You must lodge your application within 21 calendar days after the dismissal takes effect.
- You must notify consent arbitration or make an application to court within 14 days after FWC has issued you a certificate.
Which Court should I apply to?
You can apply to either the Federal Circuit and Family Court (FCFCoA) or the Federal Court (FCA).
You should consider starting your case in the Federal Circuit and Family Court because some fees are cheaper, and you may not have to wait as long before your matter is heard by a judge.
Federal Circuit and Family Court: Current fees are on the General federal law fees page.
Federal Court: Current fees are on the Court Fees Payable page.
You may not have to pay the filing fee if you:
- hold a government concession card;
- are suffering financial hardship; or
- are under the age of 18.
More information about exemptions is available on:
- Federal Court: Exemption from paying court fees has information about general exemptions and financial hardship exemptions.
- Federal Circuit and Family Court: Application for exemption from paying Court fees – general (general federal law) has information about fee exemptions if you have a Health Care Card, Legal Aid or legal assistance provider letter or Native Title funding letter.
- Federal Circuit and Family Court: Application for exemption from paying Court fees or reduction – financial hardship (general federal law) | Federal Circuit and Family Court of Australia has information about how to show that your income, day-to-day living expenses, liabilities and assets are at such that payment of the fee would cause you financial hardship.
How do I apply?
Federal Circuit and Family Court:
- Application form: Form 80.
- Claim form: Form 3 if you were dismissed after 1 July 2009, Form 1 if you were dismissed before 1 July 2009.
Make sure you attach your FWC certificate to your application as well as any other documents or evidence you want to rely on.
- You can find copies of these forms on the Federal Circuit and Family Court webpage under ‘Fair work: Legal resources.’
Federal Court:
- Application form – Form 80.
- Statement of claim – Form 17.
Make sure you attach your FWC certificate to your application as well as any other documents or evidence you want to rely on.
You can find copies of these forms on the Federal Court website.
You need to file (lodge) your forms with the court registry.
You need to pay the filing fee when you file your documents.
When your application is accepted, the court will insert a ‘Notice of Filing and Hearing’ and/or a ‘Notice of Filing’ time. An example of what this looks like is on the Federal Court website.
Federal Circuit and Family Court:
- Online using the e-lodgement facility (find more information on their website).
- In person at a Federal Court registry (find addresses and hours of business hours on their website).
Federal Court:
- Online using the e-lodgement facility or by fax (find more information on their website).
- In person at a Federal Court registry (find addresses and hours of business hours on their website).
- By post, including a cover letter with your contact details and instructions for the court to file your forms.
Federal Circuit and Family Court and Federal Court (both):
Once you have stamped copies of your forms, you need to give a copy to your employer (or other person you are claiming against) so they can respond to your claims.
Individual employer
If your employer is a person, you need to:
- give the forms to them in person; or
- if they won’t accept the forms, put them down in their presence and explain what they are.
Company employer
If your employer is a company, you need to:
- post the forms to the company’s registered office (address it to the “Proper Officer”);
- take the forms to the registered office and leave it with an employee; or
- hand the forms personally to a director of the company.
You can check the company’s registered address by searching the ASIC Register.
Federal Circuit and Family Court (only):
If you have started your case in the Federal Circuit and Family Court, then once you have served your employer, you need to let the Court know.
Fill in the Affidavit of Service (Fair Work) form (available on the Federal Circuit and Family Court website) and take this form to the court registry.
The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).
Time Limits – serving forms on your employer
- If filing in the Federal Circuit and Family Court: service must be done at least 7 days before the date of the first hearing.
- If filing in the Federal Court: service must be done at least 5 days before the date of the first directions hearing.
What orders can the court make?
If the court decides that your employment has been unlawfully terminated, it can:
- issue a fine (a civil penalty);
- make an order for reinstatement (i.e. you get your job back);
- make an order awarding compensation for loss;
- grant an injunction or interim injunction; and/or
- award costs (who has to pay the legal fees) – in very limited circumstances.
Costs orders
A costs order is where the Court orders one party to pay the other party’s legal costs.
The Court may make a costs order against you if you are unsuccessful in your claim. This may happen in circumstances where you have acted unreasonably or where the main purpose of your claim was to harass or embarrass the other party.
Useful websites
- Fair Work Commission – General Protections Benchbook
- Fair Work Ombudsman – Fact Sheets
- NSW Law Access – Employment rights
- The Law Handbook (NSW) – Chapter 22 on Employment Law
- Federal Circuit Court – Industrial Law
- Federal Court Rules 2011
- Federal Circuit Court Rules 2001
This resource was last updated on 30 October 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.
More self-help resources
Do you need legal help?
You might be eligible for free legal help from our lawyers. Making an online application is the quickest and best way to apply for free legal help.
