Unlawful termination must be distinguished from unfair dismissal, though they are both covered by the Fair Work Act 2009 (The Act). Unfair dismissal applies where an employee’s dismissal is harsh, unfair or unreasonable. Unlawful termination occurs where actual discrimination has occurred and an employee has been fired for a particular discriminatory reason. Employees have general protection under the law against unlawful termination for various reasons, which The Act sets out. Unlawful termination may be found if an employer is found to have terminated someone’s employment based on one or more of the following:
- a person’s 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 (some exceptions apply, such as where it’s based on the inherent requirements of the job);
- temporary absence from work because of illness or injury;
- trade union membership or non-membership;
- participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
- seeking office as, or acting as, a representative of employees;
- being absent from work during maternity leave or other parental leave;
- temporary absence from work to engage in a voluntary emergency management activity;
- filing a complaint or participating in proceedings against an employer.
There is a 21 day time limit on bringing claims of wrongful termination to the Fair Work Commission. Before lodging an application it would be wise to seek legal advice, so if you feel you have been unlawfully terminated from your place of work, it is necessary to act quickly. Our employment lawyers are here to help!