Unlawful Termination Claims

Under the Fair Work Act, where an employer terminates an employee’s employment for one of the following reasons, the employee may make an unlawful termination application:

• temporary absence from work because of illness or injury (within the meaning of the Fair Work Regulations 2009)
• trade union membership or participation in trade union activities outside working hours (or during working hours with the employer’s consent)
• non-membership of a trade union
• seeking office as, or acting or having acted in the capacity of, an employee representative
• the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities
• race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
• absence from work during maternity leave or other parental leave
• temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Unlike unfair dismissal claims, any employee may make an unlawful termination claim, irrespective of the size of their employer’s business, the amount they earn and their length of service.

An unlawful termination application must be made within 21 calendar days after the termination takes effect.

As with an unfair dismissal claim, an unlawful termination claim may result in the employee being reinstated, or compensated for lost income, or both. However ,unlike unfair dismissal claims in which compensation is capped at 6 months pay, there is no cap on the amount awardable under unlawful termination claims.

However, while unfair dismissal claims are heard by the relatively informal and low cost Fair Work Commission, unlawful termination claims are heard in the Federal Court, which is more expensive for both parties in terms of legal fees.