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Sacked because you are lesbian or gay

 

If you have been sacked because you are lesbian or gay you may be able to take action under workplace laws or equal opportunity or anti-discrimination laws.

What protection do I have under workplace laws? 

The Fair Work Act 2009 (Cth) makes it illegal to sack someone because of sexual orientation. Employees covered by the national system can apply to the Fair Work Commission (FWC) or make a complaint to the Fair Work Ombudsman (FWO).

You may also have a claim if your dismissal was "harsh, unfair or oppressive". Being sacked because of your sexual orientation can be unfair or oppressive. This is called an unfair dismissal claim.

For more information, see Unfair dismissal and unlawful termination of employment.

What do I have to prove?

You have to prove you were sacked because of your sexual orientation, and not because of poor performance or misconduct.

Where do I lodge an unfair dismissal or unlawful termination claim?

You need to decide whether national or state employment law applies to you. 

If you are unsure whether you are covered by state or national law, contact the FWC Help Line on 1300 799 675, or the FWO on 13 13 94 or go to its website, or contact Wageline on 1300 655 266.  

Certain employees are excluded from applying for unfair dismissal. Get legal advice as soon as possible about whether you are excluded and what other options you may have.

If you are covered by :

If you are not covered by the national system you can lodge an unlawful termination claim based on discrimination with the Fair Work Commission. There is a fee to make the application.You can also make a complaint to the Fair Work Ombudsman about unlawful termination.

You should always get legal advice before starting an unlawful dismissal or unlawful termination claim.

For more information, including on other unlawful dismissals for national system workers covered by Fair Work Australia, see Unfair dismissal and unlawful termination of employment.

Is there a time limit for lodging a claim?

Get legal advice immediately. The time limits are very strict.

  • WAIRC: for an unfair dismissal - within 28 calendar days of the effective date of your termination.
  • FWC:
    • for unlawful termination and for general protections dismissal applications:
      • if the dismissal occurred before 1 January 2013, within 60 days of the date of dismissal and
      • if the dismissal occurred on or after 1 January 2013, within 21 days of the date of the dismissal
    • for unlawful dismissal
      • if the dismissal occurred before 1 January 2013, within 14 days of the date of dismissal 
      • if the dismissal occurred on or after 1 January 2013, within 21 days of the date of the dismissal.

The FWC may accept late applications in some circumstances.

Discrimination

It is unlawful to discriminate against a person in the workplace because of their sexual orientation.

If you believe you have been dismissed because you are gay or lesbian you may also have a discrimination claim under equal opportunity legislation. These claims are lodged at the West Australian Equal Opportunity Commission. Your claim must be lodged within 12 months of the last act of discrimination. Get legal advice about your case.

The Australian Human Rights Commission may also be able to help if you have been dismissed from a job and you believe this was because of your sexual orientation, gender identity or intersex status. It is a specialist agency that investigates and resolves complaints about discrimination at work.

See Discrimination for more information.

Where can I get more information?

  • Your union - If you belong to a union, ask them first. They can often do all the work and represent you, usually for free. They can also tell you where else you should go.
  • Contact Legal Aid WA's InfoLine on 1300 650 579. Information officers may be able to help you with appropriate referrals within Legal Aid WA or to other organisations .
  • Industrial advocate or lawyer - see the Yellow Pages.
  • Contact the Fair Work Commission on 1300 799 675 or go to its website for information on temination of employment.
  • Contact the Fair Work Ombudsman on 13 13 94 for information on workplace rights and how to make a complaint.
  • Contact the West Australian Equal Opportunity Commission on (08) 9216 3900 or country calls 1800 198 149 for information on your rights and how to make a complaint.
  • Contact the Western Australian Industrial Relations Commission for information on unfair dismissals. 
  • Contact the Australian Human Rights Commission on 1300 656 419 or (02) 9284 9888.

Please note, the Western Australian Industrial Relations Commission and the Fair Work Commission cannot give legal advice.

 

Last reviewed: 02/11/2011

Last Modified: 01/08/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.