Employment Law - Unlawful Termination of Employment, Where Do You Stand?

Date: September 11, 2007

Authors: LAC Lawyers

The Workplace Relations Act 1996[1] (‘WRA’), states that an employee’s employment is not to be terminated on certain grounds and section 659(2) of the WRA provides the appropriate coverage.

It should be noted that employees who are excluded from making unfair dismissal claims are not excluded from making unlawful termination claims regardless of the 100 employee cap.

While the issues are complex the meaning of s 659(2) is easily conveyed. Section 659(2) states that an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

• temporary absence from work because of illness or injury;
• trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;
• non‑membership of a trade union;
• seeking office as, or acting or having acted in the capacity of, a representative of employees;
• the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
• race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
• refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;
• absence from work during maternity leave or other parental leave; and
• temporary absence from work because of the carrying out of a voluntary emergency management activity.

In addition, provisions of the WRA are intended to assist employees by giving effect to the Human Rights and Equal Opportunity Commission Act 1996; Family Responsibilities Convention; and Termination of Employment Recommendation, 1982.   

The collective impact of the WRA and associated instruments is that employees who believe their employment has been unlawfully terminated can with the help of LAC Lawyers make an application to the Australian Industrial Relations Commission (‘AIRC’) on one or more of the grounds listed in s 659(2).

One of the key grounds for unlawful termination of employment is discrimination. The WRA can assist employees who have been discriminated against by upholding the fundamental principles of the Sex Discrimination Act 1984 (Cth) (‘SDA’). The major objectives of the SDA are to: promote equality between men and women; eliminate discrimination on the basis of sex, marital status, pregnancy and family responsibilities; and abolish sexual harassment at work, in education institutions, in the provision of goods and services, and the delivery of Commonwealth programs etc.[2]  

In relation to pregnancy and parental leave the WRA provides for a return to work guarantee after maternity leave. The WRA provides even further protection by highlighting that if an employee’s employment is terminated because the position no longer exists and a reason for the employee’s position no longer existing relates to an absence from work during maternity leave or parental leave, then the employer may be in breach of unlawful termination provisions of the WRA.       

Employee’s also need to keep in mind that if you have been unlawfully terminated then you may be eligible to receive up to $4,000.00 for independent legal advice, based on the merits of your claim. An employee’s eligibility to the Unlawful Termination Financial Assistance Scheme is by way of a certificate from the AIRC indicating that the employee’s claim has merit and could not be resolved through conciliation. Additionally, to be eligible for assistance the employee’s income prior to termination must be below $47,745.00 per year (or below $915.70 per week) – these figures are adjusted every two years.[3]      

Employee’s who believe they have been unlawfully terminated need to act without delay as you only have twenty one (21) days[4] in which to lodge an application dealing with unlawfully termination - contact LAC Lawyers Pty Ltd on 1300-799-888 for immediate assistance.

For information on unfair dismissal claims please refer to the article titled ‘Unfair Dismissal – Your in the Wrong Class’ located on the LAC Lawyers website.

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• Alternative Claims
• Employment Law & Unfair Dismissal