This fact sheet 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:
This fact sheet covers:
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 (see our factsheet on Taking General Protections Applications to Court). Generally, this means that only employees who are not covered by the national workplace relations system can make an unlawful termination application.
You are not covered by the national workplace relations system (and you can therefore make an unlawful termination claim) if you:
For more information, see the Fair Work Commission page on national workplace relations system coverage.
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 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, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
- absence from work due to maternity leave or parental leave; or
- temporary absence due to involvement in a voluntary emergency management activity.
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 of $70.60 unless you can demonstrate serious financial hardship. See the FWC’s website for guidance.
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:
You can apply to either the Federal Court or the Federal Circuit Court. You should consider starting your case in the Federal Circuit Court because some fees are cheaper, and you may not have to wait as long before your matter is heard by a judge.
You may not have to pay the filing fee if you hold a government concession card or are suffering financial hardship. More information is available: http://www.fedcourt.gov.au/forms-and-fees/courtfees/exemptions.
You need to fill out 2 forms:
You can find copies of these forms on the Federal Circuit Court website.
Make sure you attach your FWC certificate to your claim.
You need to fill out 3 forms:
You can find copies of these forms on the Federal Court website.
You can file your forms:
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.
If your employer is a person, you need to:
If your employer is a company, you need to:
You can check the company’s registered address by searching the ASIC Register.
If you have started your case in the Federal Circuit Court, then once you have served your employer, you need to let the Federal Circuit Court know. Fill in the Affidavit of Service (Fair Work) form (available on the Federal Circuit Court website under Industrial Law) and take this form in to the court registry. The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).
If the court decides that your employment has been unlawfully terminated, it can:
This resource was published 21/09/2017. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.