Updated on Sep 29, 2023 • 3 min read • 683 views • Copy Link
Unlawful dismissal (not to be confused with unfair dismissal) occurs when a person is terminated from employment in circumstances which have been expressly made unlawful. Examples of unlawful dismissal are dismissing an employee because of of their sexual orientation or because they have made a complaint against the employer. Claims of unlawful dismissal can be made to the Fair Work Commission under the Fair Work Act by completing this form. This article deals with unlawful dismissal under federal law.
Under the Fair Work Act, termination of a person’s employment is unlawful if they are dismissed for any of the following reasons.
Temporary absence because of illness or injury
It is unlawful to terminate a person’s employment because of absence from work for up to three months because of illness or injury (Section 352). This includes an aggregate period of three months within a one year period. However, where a person’s illness or injury means they are no longer able to perform their duties, an employer may be able to justify terminating their employment.
Involvement with a trade union
It is unlawful to terminate a person’s employment because they are a member of a trade union or because of their involvement in trade union activities.
A complaint made against the employer
It is unlawful to terminate a person’s employment because they have made a complaint against the employer, such as a bullying complaint or a complaint about sexual harassment.
Parental leave status
It is unlawful to terminate a person’s employment because they have applied for parental leave or because they are on parental leave.
Discrimination on proscribed grounds
It is also unlawful to dismiss someone because of reasons amounting to discrimination under existing anti-discrimination legislation, such as the Racial Discrimination Act and the Sex Discrimination Act. Therefore, terminating someone’s employment because of their race, religion, age, political opinion or sexual orientation is also unlawful under section 351 of the Fair Work Act.
Process for deciding unlawful dismissal claims
An application to the Fair Work Commission for unlawful dismissal must be made within 21 days of the date the dismissal took effect. Upon receiving such an application, the FWC must hold a conference to attempt to resolve the dispute. If the dispute is not resolved at this conference, the FWC will issue a certificate to that effect. The applicant may then make an application in the Federal Circuit and Family Court of the Federal Court of Australia.
The remedies the courts may deliver include reinstatement, compensation and civil penalties. Unlike in the unfair dismissal jurisdiction, there is no cap on compensation for unlawful dismissal.
Unlawful dismissal under state and territory law
If you are employed by local or state government and as such are not covered by the national workplace system, you are still eligible to make an unlawful dismissal application if you believe you have been dismissed unlawfully. However, if you are a contractor or were employed for a specified period and terminated at its conclusion, you are not covered by unlawful dismissal laws.
If you think you have been dismissed unlawfully, call Go To Court Lawyers for legal advice.
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