Unlawful termination

What is unlawful termination?

Unlawful termination is similar to a general protections dismissal: it is when an employer ends a person’s employment, and the reason is or includes a reason that is prohibited by the Fair Work Act.

You may be eligible to make an unlawful termination application if you are not a national system employee.

If you are a national system employee but are not entitled to make a general protections dismissal application because the reason or reasons for your dismissal are not prohibited by the general protections provisions you may also be eligible to apply.

When you can and cannot apply for unlawful termination

Unlawful termination provisions protect people who are not entitled to make a general protections dismissal application. You must not apply for unlawful termination if you can apply under the general protections provisions of the Fair Work Act.

You can make an unlawful termination application if:

• you are dismissed from your job AND
• your employer dismisses you because, or for reasons which include a prohibited reason AND
• you are not a national systems employee OR you are a national system employee and you are not entitled to make a general protections dismissal application because the reason or reasons for the dismissal are not prohibited reasons under the Fair Work Act.

Prohibited reasons

Your employer must not terminate your employment for any of the following reasons:

• you are temporarily away with illness or injury
• you are (or are not) a member of a trade union
• you participated in trade union activities outside business hours
• you participated in trade union activities during business hours with your employer’s consent
• you are seeking office as, acting or have acted as, a representative of employees
• you filed a complaint or participated in legal proceedings against the employer
• 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
• you take maternity or other parental leave
• you are engaging in a voluntary emergency management activity and are away from work temporarily where the absence is reasonable in all the circumstances.

See Section 772 of the Fair Work Act 2009.