Text Size a a PrintPrint this page

Unfair dismissal and unlawful termination of employment

 

 

It is important that you get legal advice as soon as possible about unfair dismissal or unlawful termination laws and other options if you have been dismissed or are about to be dismissed. Time limits apply.

What is unfair dismissal?

Unfair dismissal happens when an employee's dismissal from employment is harsh, unjust or unreasonable.

There are very short time limits that apply to making an unfair dismissal claim. You need to act as soon as possible after being dismissed.

There are state and national (sometimes called Commonwealth) laws about dismissal, and each has its own industrial commission or tribunal:

Each body has their own rules about who can and cannot apply, which prevent certain employees from bringing an unfair dismissal claim. If you think you have been unfairly dismissed, get legal advice as soon as possible.

Before going to court about unfair dismissal, you should find out:

  • if you have a legal claim
  • whether you can or cannot start an unfair dismissal application
  • what other legal options you have
  • the chance of success
  • the possible costs
  • which court or commission or tribunal you should go to, and
  • what date you have to start legal action by.

For more information about unfair dismissal contact :

What time limits apply?

  • FWC - employees dismissed on or after 1 January 2013 have 21 days from the date of dismissal (the time may be extended in exceptional circumstances).
  • WAIRC - within 28 days after the day of dismissal (time may be extended in some circumstances).

The FWC may accept a late application but only in exceptional circumstances.

Am I covered by state or national law?

It can be difficult to know what law applies to you and what your rights are.

Workers are not generally covered by the national system if they work for :

  • the WA government public sector
  • Australian corporations whose main activity isn't trading or financial, or
  • sole traders, partnerships or trusts.

If you are unsure whether you are covered by state or national law, contact the Fair Work Commission Help Line on 1300 799 675 or go to its website to check if you are eligible to make an applicationor the Fair Work Ombudsman (FWO) on 13 13 94 or go to its website, or contact Wageline on 1300 655 266.  

Do I have other options?

You may be excluded from starting an unfair dismissal claim, but there may be other legal options available, such as but not limited to:

  • an unlawful termination claim (see below) or
  • a general protections dismissal application if you are covered by national law
  • an equal opportunity or anti-discrimination claim, or
  • a breach of contract claim.

You should get legal advice as soon as possible about:

  • what legal options are available to you
  • if you have a legal claim
  • the chance of success
  • the possible costs
  • which court, tribunal or commission (eg the Equal Opportunity Commission) you should go to, and
  • what date you have to start legal action by.

What is unlawful termination?

An unlawful termination occurs if you are dismissed primarily for a discriminatory reason.

If you are not covered by the national system you may still be able to apply to the FWC if the termination was based primarily on discriminatory grounds.

Under the Fair Work Act 2009 (Cth) an employer must not end your employment because of :

  • temporary absence due to illness or injury
  • trade union membership or participation in trade union activities
  • race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin
  • non-membership of a trade union
  • seeking office as, or acting as, an employee representative
  • filing a complaint, or participating in proceedings, against an employer involving alleged breaking of laws or regulations
  • absence from work for family or other parental leave, or
  • temporary absence from work because of voluntary emergency service activity.

You must not make an unlawful termination application on this basis if you are able to make a general protections application in relation to the same conduct (see under the next heading for information on general protections dismissals).

There are strict time limits for starting a claim for unlawful termination of employment so you need to act quickly and get legal advice. 

An unlawful termination application to the FWC must be lodged within 21 days of the date of dismissal if the dismissal occurred on or after 1 January 2013.

The FWC may accept late applications. There is an application fee. It may be waived by FWA if payment would cause serious hardship.

For more information and assistance with unlawful termination contact :

What protections against unlawful termination do I have if I work in the national system?

Under the Fair Work Act 2009 (Cth) employees in the national system have rights in relation to freedom of association, discrimination and certain workplace rights. These are called the general protections provisions. Under these provisions employees are "protected" from an employer taking any "adverse action" that is prohibited under this Act in relation to these rights. This includes dismissal in certain circumstances, eg because they have a workplace right or have exercised such a right, or because of a characteristic such as sexual preference or race.

For more information on situations where an employer cannot take adverse action resulting in dismissal to see if these provisions apply to you contact the Fair Work Commission on 1300 799 675 or visit its website. A guide on General protections is available which outlines the process for who can apply, on what grounds and how the application will be dealt with. Note: FWC staff cannot advise whether or not you should make an application. Get legal advice if you are unsure.

Note: you cannot make a general protections dismissal application at the same time as an unfair dismissal application. 

If you are eligible and decide to make a general protections dismissal application (adverse action dismissal) you must apply to the FWC within 21 days of the dismissal taking effect. The FWC may accept late applications in exceptional circumstances. A filing fee is payable. An application for the fee to be waived can be made if payment will cause serious financial hardship.

Where can I get more information?

  • 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.
  • Contact the Western Australian Industrial Relations Commission on 9420 4444 or 1800 624 263 (country callers). It has an online guide on unfair dismissals.
  • Contact the Fair Work Commission Help Line on 1300 799 675 for assistance. You can access the FWC Unfair Dismissal Benchbook online. This benchbook has been prepared by the FWC to help parties lodging or responding to an unfair dismissal applications under the Fair Work Act 2009 (Cth). Fact sheets and guides are also available online.
  • Contact the Fair Work Ombudsman or go to its website for information on how to make a complaint.
  • For information on unfair dismissal on the grounds of sexual preference go to Sacked because you are gay or lesbian.
  • Contact the Employment Law Centre of WA (Inc) on 1300 130 956 or (08) 9227 0111 or go to its website for information kits and fact sheets on unlawful dismissal and unlawful termination or to get legal advice.
  • Click here to see a Mock Unfair Dismissal Hearing on YouTube.

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

 

Last reviewed: 22/11/2013

Last Modified: 27/11/2013

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.