Unlawful termination laws can be a minefield

THIS is the second column in our four-part series regarding the rights of employees who have been dismissed.

The last column dealt with unfair dismissals, and today we look at unlawful termination, which occurs when employees are dismissed because of their race, age, gender, religion, sexual orientation, pregnancy, membership (or non-membership) of a union or involvement in union activities, injury or temporary absences due to illness.

In some cases it can appear to be straightforward whether an employee has been dismissed due to one or more of these reasons, but an employee must first be entitled to apply for relief for unlawful termination.

The Fair Work Act prohibits national system employees from making an application for unlawful termination where they can otherwise make a claim for "general protections" available elsewhere in the act, to avoid employees making multiple claims about the same events.

Where the circumstances involve some element of discrimination, an application to the Fair Work Commission for unlawful termination due to discriminatory practices may be referred to the Anti-Discrimination Commission for determination.

An important lesson for employers and employees is the difference between a dismissal that may be unfair because it was harsh, unjust or unreasonable, and a termination that is unlawful where the law prohibits unacceptable conduct towards employees.

It is also important to recognise not all unlawful terminations are due to discrimination (for example, sacking someone because they are in a union is not discrimination. It's unlawful).

Re-instatement or compensation are the remedies available for unlawful termination, and unlike the capped compensation in unfair dismissal claims, compensation for unlawful termination is uncapped.

Strict timeframes apply for employees to start unlawful termination claims in the Fair Work Commission and if the matter cannot be resolved at conciliation, it may proceed to the Australian Federal Court for determination.

The cost can be great.

Employers should be vigilant about their work procedures and record-keeping to ensure they can prove an employee was not dismissed on prohibited grounds.

Elspeth Ledwy is a senior associate with Kelly Legal practising in personal litigation and injury law and can be contacted at or by visiting

Topics:  law opinion workplace

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