What does unlawful termination mean to you?
Employees are provided general workplace protections that should not be impeded by employers. Such as the right not to be discriminated against. When employers do obstruct an employee’s general protection rights through a termination, an employee may be entitled to lodge an ‘unlawful termination’ of employment claim.
Unlawful termination claims refers to the dismissal of an employee that violates their legal rights and protections afforded to employees under section 772 of the Fair Work Act 2009 (Cth) (‘the Act’).
What is section 772?
Section 772 of the Act defines specific grounds that make a termination of employment unlawful. Under this section, an employer must not dismiss an employee for certain reasons, including but not limited to:
Discrimination Based on Protected Attributes
Dismissing an employee because of attributes such as their race, sex, gender, sexual orientation, disability, age, religion, political opinion, social origin, or any other protected characteristic under Australian anti-discrimination laws. The Act recognises that discrimination in employment is not only unethical but also illegal.
Temporary Absence Due to Illness or Injury
Employees who are temporarily absent from work due to illness or injury cannot be dismissed under this section. Provided the absence does not extend beyond the allowed legislative period.
It is important to note that there are limitations to this workplace right. Without care employees may be fairly dismissed. Employees cannot be gone from work for an indefinite amount of time. Especially when they show no signs or communication of returning to work.
Generally, employers can commence the termination process when the employee has been gone for more than 12 consecutive months. Especially if there has been no communication or return to work plan established.
Joining (or not joining) a Trade Union
Employees cannot be dismissed for either being a member of a trade union or for their choice to not participate in one.
Trade unions are vital in advocating for workers’ rights. Section 772 safeguards against retaliatory action (or adverse action) based on union membership. Ensuring that employees have the freedom to join or not join a union without fearing for their employment.
Engagement in Industrial Activities
Employees who engage in industrial activities, such as striking, organising protests, or participating in other union activities, are protected from dismissal under Section 772.
Industrial actions, as long as they comply with the law, are part of an employee’s workplace rights. Terminating an employee for such activities violates their rights. Noting that not all industrial action is legal. There are quite a few steps and requirements before employees can engage with such activity.
Enforcing Employment Rights
Employees cannot be dismissed for exercising their right to complain about matters related to their employment. While broad, this may include complaints related to pay, health and safety concerns, bullying, or sexual harassment, to name a few.
This section also allows employees the right to access their entitlements without fear of repercussion. For example, asking to use various leave options.
Parental Leave
Termination of an employee who is on parental leave, or has requested to use parental leave, is unlawful under the Fair Work Act.
Employers are continuously improving and enforcing employees to have better work-life balance. A part of that movement includes employers being more understanding of a parents responsibility. Additionally, the need for both parents to be at home during the start of a baby’s life.
What’s the difference? Why can’t I lodge an unfair dismissal case?
Claims of unlawful terminations of employment are usually a last resort and a catch-all for employees who were not eligible for the more common unfair dismissal or general protection claims. While these two claims do protect the majority of Australians, they don’t protect everyone.
The similarity between unlawful termination and unfair dismissal is that both claims require that the employee is terminated prior to lodging a claim. However, that is where the similarity ends. Both claims have wildly different tests and require different prerequisites to be fulfilled.
Unfair dismissals are more limited in who can apply. Employees must satisfy a minimum employment period and earn under the salary limit. Furthermore, unfair dismissals focus on whether the dismissal was harsh, unjust, or unreasonable. With less consideration to the reason behind the dismissal. The claim requires an employer to follow a fair process and deduce whether the decision to terminate was proportionate to their conduct or performance.
In comparison, unlawful termination claims only require an element of secretion 772 to be present, and a subsequent termination. There is no requirement for the employee to be employed for a certain time period. Or limit to how much they earn.
General workplace rights and what it means for you
An unlawful termination of employment claim is more similar to a general protection claim. Both are more general protections to employee rights. Encompassing elements such as protecting against discrimination and allowing employees to exercise their right to complain.
Both claims protect employees from retaliation, or adverse action, in the form of termination.
The primary difference between the two claims is that an employee does not have to be a national systems employee (‘NSE’) to lodge an unlawful termination claim. Whereas, an employee does have to be a NSE to lodge a general protection claim.
Employees are also allowed to lodge an unlawful termination claim if they satisfy the test of a general protection claim but are otherwise prohibited for a reason under the Act.
A ‘national systems employee’ covers most regular employees who work in a business or organisation that is part of Australia’s national workplace system. Whether an employee is an NSE depends on the state they work in. All Victorian employees are covered as an NSE. Whereas, government employees in WA are not considered an NSE.
Regardless of the claim lodged, employees only have a strict 21 days to lodge their claims from the day of their dismissal. Noting that an employee cannot lodge a claim the day they are dismissed.
Remedies for unlawful termination of employment
When an employee believes they have been unlawfully terminated under Section 772, they may seek to challenge the dismissal through the Fair Work Commission (FWC). In some cases, the claim can progress to the Federal Court or Federal Circuit and Family Court if conciliation is not successful.
Remedies for unlawful termination can include the following:
Reinstatement
The employee may be reinstated to their previous position if they wish to return to work. This remedy is particularly common when the dismissal was found to be unlawful but was not related to the employee’s conduct or performance. Reinstatement may involve the employee returning to their original position or a similar role within the same organisation.
This remedy is considered difficult to achieve in the vast majority of cases. If the relationship between the employee and employer has not disintegrated through the dismissal process, then it may through the Fair Work process. Any form of dispute resolution may be confronting for the employer and result in adverse feelings.
Compensation
If reinstatement is not an appropriate remedy (e.g., the employment relationship is beyond repair), the employee may be entitled to financial compensation. Compensation is typically based on factors such as the duration of the employment, the severity of the unlawful termination, any lost earnings, and the emotional damage suffered as a result of the dismissal.
Employees should keep in mind that the more financial compensation they are seeking, the more likely they will have to go through the court process.
- Recovery of Lost Earnings
- If the unlawful termination led to a period of unemployment, the employee may be entitled to compensation for the wages lost during the time they were out of work.
- The employee may want to consider their employability and likelihood of finding further work. For example, employees in positions of seniority or in a niche industry may find it more difficult to find work than someone who has more intermediate general skills.
- Compensation will be considered for the time already passed. It is more difficult to secure funds for time that has not passed and to estimate how long the employee will be out of work for.
- Damages for pain and suffering
- In circumstances where employees have faced emotional distress, they can ask to be compensated in the form of ‘general damages’. Often this requires a form of medical evidence that the employee has suffered emotionally. This could be in the form of psychiatric notes or health care plans.
Non financial compensation
Some employees will seek remedies that are neither reinstatement or financial compensation. This often includes reputational repairs. For example, asking for their termination to be converted to a resignation on paper. Or to ensure they are not going to be disparaged by their previous employer if they are used as a reference.
There is no limit to what can be asked to resolve the employment dispute. However, these options are the most common and practical for most cases.
Practicality in the Fair Work Commission
In most cases an employee will only lodge an unlawful termination claim if they are unable to lodge either an unfair dismissal or general protection claim. Often due to being out of time or another reason that would prohibit another claim to be lodged.
It is not practical to lodge this type of claim if another claim is available. Often an unlawful termination claim is relied upon to try and resolve a jurisdictional or legislative issue.
Case of claustrophobia is dismissed
In one case, Sue Jacobs v Adelaide Theosophical Society Inc. (New Dimensions Bookshop) [2022] FWCFB 79, the appeal of the case was denied as it was found that a general protection case was applicable. Thus, the unlawful termination case should not have been lodged.
In this case, the employee was terminated because she refused to wear a face mask due to her claustrophobia. At the time wearing a face mask was mandatory to limit the transaction of Covid-19. The employee was terminated as the employer upheld she was no longer able to perform “an inherent requirement” of her job.
Therefore, the employee lodged her unlawful termination case under the following legislation:
- “The filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities” – s.772(1)(e); and
- “Physical or mental disability” – s.772(1)(f).
The employer objected to the claim. Citing that the claim could not be lodged when a more appropriate claim was available to her. Therefore, the dispute became a technical one.
The Commission agrees with the employer
The Commission agreed that the employee had the grounds to ask for an appeal. However, the appeal itself was not granted.
They found that when they considered all the information from her unlawful termination claim, she was entitled to make a general court application. Therefore, she could not make an unlawful termination claim. Furthermore, the employee misunderstood the general protection legislation in which her circumstance was applicable and could have been lodged under.
Have you been unlawfully terminated from work?
An unlawful termination claim is broad in who can apply (eg. non non national systems employee). However, its practical use is limited. The above example also highlights the importance of seeking advice and thoroughly understanding the claim that is being lodged to ensure it is the most legally viable option.
If you want to know more about your Fair Work Commisison options, utilise our free consultation service to find our more. We have been helping employees for almost three decades and can help you today. We are not lawyers, but your local employment specialists.
Call 1800 333 666 for your free consultation.
Similar articles to “Unlawful termination of employment”
Difference Between Dismissal and General Protections
What can an employer insist on?
