Unlawful Termination and Unfair Dismissal: Key Differences

Unlaw terminations and unfair dismissals are believed by many to be the same. However, there are key differences to these two kinds of Fair Work Commission claims. Unlawful termination claims, unfair dismissal claims, and General Protections claims are the three types of claims that you can make if you are dismissed.

If you’ve been dismissed, it’s important to act quickly.

To make an unlawful termination, unfair dismissal or General Protections claim, you must lodge with the Fair Work Commission within 21 days of your dismissal. This is a deadline that is strictly enforced. Rarely does the Fair Work Commission grant time extensions when claims are made late. So make sure you start your application now and seek legal advice as soon as possible.

A Whole New Approach can help you work out which claim to make. And we can provide the expert guidance needed to ensure it is a success. We offer a no win, no fee service. And your first consultation with us is free. Call us today at 1800 333 666 and we can ensure you lodge your claim correctly and on time.

What is an unlawful termination claim?

An unlawful termination is when an employee has been dismissed from their employment for a reason that is prohibited by the Fair Work Act 2009. To contest an unlawful termination via the Fair Work Commission, you can lodge an unlawful termination claim (Form F9).

If your unlawful termination claim is a success, the Fair Work Commission may choose to reinstate you to your former role. Or it may order your employer to pay you financial compensation. To make an unlawful termination claim via the Fair Work Commission, your workplace must not be covered by the National Workplace System. You must also not be eligible to make an unfair dismissal claim or a General Protections claim.

An unlawful termination takes place when an employee is dismissed for one or more of the below reasons:

• Race, religion, age, physical or mental condition, sex, sexuality, martial status or any other protected characteristic. You can view the full list of protected characteristics on the Fair Work Commission web site.
• A temporary absence from work as a result of illness or injury.
• Being a member of a trade union or taking part in trade union activities.
• Being a member of a trade union.
• For seeking to be or being an employee representative.
• Being absent from work due to maternity leave or other parental leave.
• Being absent from work due to a voluntary emergency management activity.
• For making a complaint against their employer. For instance, raising an internal complaint about their pay. Or for filing a complaint via the Fair Work Commission.

Who is not covered by the National Workplace System?

The National Workplace System, otherwise known as the Fair Work System, covers the vast majority of Australian workplaces. These workplaces are subject to a collection of national workplace laws. This includes the Fair Work Act 2009, the National Employment Standards, registered agreements and awards.

Whether your employer is covered by the National Workplace System depends on which state or territory it is located in. You can find out if your employer is covered by the National Workplace System on the Fair Work Commission web site.

For example, state government employees in New South Wales, Western Australia, South Australia and Queensland aren’t covered by the National Workplace System. Whereas all employees in Victoria, the Australian Capital Territory and the Northern Territory are covered by the National Workplace System.

What is an unfair dismissal claim?

For an employee to have received an unfair dismissal, the first requirement is that they were dismissed. To be dismissed means that their employment was terminated by their employer. Or if the employee was forced to resign due to the conduct of their employer (which is known as a constructive dismissal).

To contest an unfair dismissal via the Fair Work Commission, you can lodge an Unfair Dismissal Application (F2 Application). If your unfair dismissal claim is a success, the Fair Work Commission may choose to reinstate you to your former role. Or it may order your employer to pay you financial compensation.

An employee has been unfairly dismissed if the Fair Work Commission finds that:

• They were dismissed.
• The dismissal was harsh, unjust or unreasonable.
• The dismissal was not a case of genuine redundancy.
• If they were employed at a small business (with fewer than 15 employees), the dismissal was not consistent with the Small Business Fair Dismissal Code.

Unfair dismissal claims: What the Fair Work Commission considers

In deciding if a dismissal was harsh, unjust or unreasonable, the Fair Work Commission will consider a number of factors. This includes:

• Whether the employer had a valid reason to dismiss the employee. And that this reason relates to the employee’s capacity or conduct.
• That the employer notified the employee of their reason for dismissal.
• That the employer provided the employee which the chance to respond to the reason and provide their side of the story.
• Whether the employer refused the employee to have a support person present during any discussions relating to the dismissal.
• If poor performance was the reason for dismissal, whether the employer warned the employee about it before dismissing them.
• Whether the size of the employer’s business would have a likely impact on the procedures it followed in making the dismissal.
• If the employer was lacking a dedicated human resource manager or expertise in its enterprise, the degree to which this would likely impact on the procedures it followed in making the dismissal.
• Any other matters that the Fair Work Commissions deems pertinent to the dismissal.

Unfair dismissal claim eligibility requirements

To make an unfair dismissal claim with the Fair Work Commission, an employee must meet certain criteria. This includes that they:

• Lodged their unfair dismissal claim with the Fair Work Commission within 21 days of their dismissal.
• Were employed by an organisation covered by the National Workplace System.
• Have already been dismissed by their employer.
• Were employed by their employer for a minimum of 6 months. Or if their employer is a small business (with fewer than 15 employees), 12 months.
• If they are a casual employee, were employed on a regular and systematic basis. And reasonably believed that this pattern of work would continue.
• Earn less than the high-income threshold. As of 1 July 2022, the high-income threshold is $162,000.

What is a General Protections claim?

A General Protections claim is made if an employer has taken adverse action against an employee. To make a General Protections claim, you need to lodge F8 Application. While unfair dismissal and unlawful termination claims only cover employees, General Protections claims are available not only to employee. Prospective employees and independent contractors are also eligible to make claims.

If your General Protections claim is a success, the court may choose to reinstate you to your former role. Or it may order your employer to pay you financial compensation.

What is adverse action?

Adverse action can manifest in several different ways. An employer has taken adverse action if it:

• Dismisses the employee.
• Prejudices the employee.
• Injures the employee in the course of their work.
• Alters the employee’s position to their detriment.
• Discriminated against the employee.

Adverse action can also encompass situations where an employee is placed in a worse position than before due to their employer’s actions. Examples of adverse action include an employer reducing a worker’s shifts, demoting an employee, or suspending an employee.

The General Protections provisions of the Fair Work Act 2009 specify that an employer cannot take adverse action for any of the following unlawful reasons:

• If the employee has exercised, or chosen not to exercise, a workplace right. For example, making a complaint to their employer or an external body like the Fair Work Commission.
• If the employer discriminates against the employee based on a protected characteristic, such as race, sex, religion, pregnancy, or social origin.
• If the employee exercises their right to freely associate and participate in lawful industrial activities, such as joining or being a member of a union.
• If the employee was temporarily absent from work due to illness or injury.
• If the employer created a sham arrangement, such as misrepresenting a job as an independent contracting role when it was actually an employment contract.

How to make your Fair Work Commission claim a success

When you make an unlawful termination, unfair dismissal or General Protections claim, that is simply the first step. The process of dealing with the Fair Work Commission and ensuring your claim is a success is incredibly stressful if you are acting alone. Gathering evidence and witnesses, and understanding the law takes considerable time and effort. Not to mention the stress that is caused by representing yourself at a Fair Work Commission conciliation or hearing.

For those workers who do represent themselves, they significantly reduce their chances of success. Often, reliving the poor treatment that they suffered from their employer can engender a number of emotions. And on top of that, they must quickly grasp the intricacies of employment law and how the Fair Work Commission works.

Your employer will come to the Fair Work Commission armed with their evidence and witnesses. And they may be highly experienced in how proceedings work. If you want to ensure you can overcome their defence, it is critical to seek representation.

We can help make your Fair Work Commission claim a success

If you need to make an unlawful termination, unfair dismissal or General Protections claim, A Whole New Approach can help. We have helped over 16,000 workers make Fair Work Commission for over twenty years. With our help, you can understand exactly what you need to do to prepare for a conciliation or hearing. And we can ensure that you are not taken advantage of by your employer.

But you need to act fast. You have only 21 days to file your claim, so contact us today. Our service is no win, no fee, and your first appointment with us is confidential and free. To arrange a private consultation, call us at 1800 333 666 and take the first step toward achieving a fair resolution.