Part 6-4 of the Fair Work Act 2009 contains provisions dealing with unlawful termination.
What is unlawful termination?
An unlawful termination occurs if a non-national system employee is dismissed for a prohibited reason.
The prohibited reasons include:
- 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 participation in trade union activities outside working hours or, with the employer's consent, during working hours
- non-membership of a trade union
- 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.
Non national system employees
Only non-national system employees can make a claim for unlawful termination. An employee is a non-national system employee if their employer is not a constitutional corporation. Most commonly this will be where the employer is a sole trader, a partnership, or an incorporated entity that does not carry out significant financial or trading activities (many non-profit corporations fit this definition).
However, most employers are national system employers as many states, including Victoria , have referred their powers to the Commonwealth. National system employees should pursue an unfair dismissal or general protection claim rather than an unlawful termination claim.
If a non-national system employee thinks they have been terminated as a result of one of the prohibited reasons action, they can apply to Fair Work Australia (“FWA”) to help deal with the dispute.
An employee may not lodge an unlawful termination claim arguing termination on a prohibited ground if they are already pursuing other related termination proceedings.
An employee must make lodge their application with FWA within 60 days of the termination. Late applications will only be accepted in limited circumstances. Time limits are strictly enforced.
However, in limited circumstances FWA may extend the period.
When deciding whether to extend the period of time in which an unlawful termination application must be lodged, FWA will take into account the following matters:
• the reason for the delay;
• any action taken by the employee to dispute the termination;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
Applicants are required to pay an application fee, which is presently $59.50. The application fee may be waived on the grounds that it would cause serious hardship.
After the application has been lodged, FWA will conciliate the claim. The purpose of a conciliation conference is to bring the employee and employer together in an informal, private meeting to reach an agreement without the need for a formal hearing.
If settlement is not reached at the conciliation conference, FWA issues a certificate certifying that all reasonable attempts to resolve the dispute have failed. The employee then has 14 days to elect to have the matter referred to the Federal Magistrates Court.
Onus of Proof
It is important to note that the onus will be on the employer to rebut the claim that the dismissal was based on a prohibited reason rather than on the employee to prove it was based on a prohibited reason.
There are various remedies available for a successful claim of unlawful termination. These remedies include penalties, reinstatement, compensation in lieu of reinstatement or any other order that the Court deems appropriate.
In general, the parties bear their own costs.
However, in some situations where a party has engaged a lawyer or a paid representative, the FWA may make an order for the lawyer or paid representative to pay the costs of the other party.
It should be noted that a dismissed employee cannot make an unlawful termination application relating to dismissal, if he or she has commenced other proceedings in relation to the dismissal (including an unfair dismissal claim).
How can Nevett Ford help?
Nevett Ford is experienced in employment law and workplace relations and has a long history of working in the area for both employees and employers.
If you are an employee or an employer and you think you might have an unlawful termination claim, or alternatively, have had an unlawful termination claim made against you, contact us and we can assist you.