Losing your job
What are some examples of unlawful termination?
An unlawful termination occurs if you are dismissed primarily for a discriminatory reason.
Under the Fair Work Act 2009 (Cth), an employer must not end your employment because of:
- temporary absence due to illness or injury
- your 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
- trade union membership or participation in trade union activities
- non-membership of a trade union
- seeking office 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.
What can I do if I have been sacked because of my sexual orientation?
It is unlawful to discriminate against you in the workplace because of your sexual orientation.
The Fair Work Act 2009 (Cth) makes it illegal to sack someone because of sexual orientation. Employees covered by the national workplace law system can apply to the Fair Work Commission or make a complaint to the Fair Work Ombudsman.
If you believe you have been sacked because of your sexual orientation, gender identity or intersex status, you may also have a discrimination claim under sex discrimination legislation. Time limits apply to discrimination claims, so you should get legal advice about your situation as soon as possible.
What time limits apply to take action?
There are strict time limits for starting a claim for unfair dismissal or unlawful termination of employment. If you think your employer has done the wrong thing, you need to act quickly and get legal advice.
For unfair dismissal claims
Claims to the Fair Work Commission must be made within 21 days from the date of dismissal (the time may only be extended in exceptional circumstances).
Claims to the WA Industrial Relations Commission must be made within 28 days after the day of dismissal (the time may be extended in some circumstances).
For unlawful termination claims
An unlawful termination claim is only available to national system employees. The application to the Fair Work Commission must be lodged within 21 days of the date of the dismissal.
The application fee may be waived by the Fair Work Commission if payment would cause serious hardship.
You may be able to get legal advice and assistance from Legal Aid WA’s Civil Law Division. Call the Infoline to find out how we can help in your situation.
Our Federal Court service for self-represented litigants may be able to assist if you have already been through a conciliation, hearing or other process at the Fair Work Commission or the Fair Work Ombudsman.
The service is only for employment issues that involve:
- general protections
- bullying at work
- sexual harassment at work.
Check the Fair Work Commission website to see if you are eligible and to make an appointment for advice.
Reviewed: 7 November 2022