Employment Law

How are employees protected from unfair dismissal or unlawful termination in Australia?

Published in: September 2017

Employees who have suffered some sort of professional loss, that can include demotion or being denied further employment opportunities, may have some protections available in relation to unfair dismissal or unlawful termination under the provisions of the Fair Work Act 2009 (Cth)(the Act).

There are a few things you should be mindful of when making an application. Firstly, anyone making an application in regards to an action of unfair dismissal to Fair Work Australia (FWA), must do so within 14 days of dismissal. However, applications under the general protections or unlawful termination provisions can be done so within 60 days.

If you’re unsure of your options, please seek the help of a lawyer who will be able to help.

Are only national system employees protected?

There is no requirement that an employee must be in the national system to make a complaint in regards to unlawful termination. However, if the person is able to make an application either via unlawful termination or the general protections, they may be required to make an application under the general protections.

How are applications dealt with?

Upon submission of an application, FWA will arrange conciliation with the aim of achieving a resolution. However, if conciliation is unsuccessful, FWA will provide a certificate that will allow the person to take the matter to either the Federal Magistrates Court or the Federal Court.

When does unfair dismissal occur?

There are a number of ways in which unfair dismissal can occur, and FWA will consider that a person has been unfairly dismissed if it is satisfied:

·         the employee has been dismissed, which can include constructive dismissal;

·         the dismissal was harsh, unjust or unreasonable, and considerations can include whether there was a valid reason for the dismissal, or whether the employee was informed of the reason, and provided with a chance to respond;

·         the dismissal was not consistent with the Small Business Fair Dismissal Code;

·         the dismissal was not a case of a genuine redundancy.

Who may be eligible to make a claim?

An employee can initiate a claim if they have completed the minimum period of employment – which is 12 months for an employee in a small business, and six months for others. Further requirements can include one or more of the following:

  • the employee is covered by a modern award, enterprise agreement, or the sum of their annual rate of earnings, and other such amount which is less than the high income threshold.

Applications must be made within 14 days and for casual employees, there may be other criteria that must be met.

What are the available general protections available?

The general protection provisions under the Act deal with a range of protections that cover national system employers and employees, along with prospective employers and employees. Additional categories include independent contractors, and people who are contracted with unions, and under certain circumstances, a third party if an action has been taken against the party because of the conduct of the other.

General protection provisions are there to ensure that employees are protected for some of the following:

  • engaging in industrial action;
  • discrimination in the workplace;
  • cashing out annual leave by asking for a reduction in hours;
  • sham arrangements.

Additionally, the general protections also protect against adverse actions that can include: dismissal of an employee (including constructive dismissal); altering the employee’s position in the workplace to their disadvantage; refusing to employ the person; terminating the contract of an independent contractor or refusing to engage with the individual; or taking industrial action against the employee which is unauthorised.

Threats to organise adverse action against a person can also fall within the general protections umbrella as well.    


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