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What is unlawful termination or dismissal?
It is unlawful for an employer to terminate an employee's employment for invalid reasons. This is called unlawful termination or dismissal. Unlawful termination provisions apply to all employees in Australia. Employees who are excluded from making unfair dismissal claims are not excluded from making unlawful dismissal claims.
Invalid reasons are:
- temporary absence due to illness or injury
- temporary and reasonable absence due to volunteer work for Disaster Emergency
- discrimination
- membership of a union
- non-membership of a union
- seeking office as or acting as a representative of the employees
- absence during maternity leave or parental leave
- the filing of a complaint against an employer involving alleged violation of laws.
Federal employees have 60 days to apply to Fair Work Australia for unlawful termination.
State employees have 21 days to apply to Queensland Industrial Relations Commission.
What is unfair dismissal?
State and federal law cover unfair dismissal. You should get legal advice if you believe you have been unfairly dismissed.
Under state and federal law, an employee's dismissal from employment is unfair if it is harsh, unjust or unreasonable. For harsh, unjust or unreasonable dismissals, several issues are considered, these can include whether:
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there was a valid reason related to the persons capacity or conduct
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they were informed of that reason
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they were given an opportunity to respond
You are dismissed if your employer terminated the agreement or you were forced to resign because of conduct engaged in by your employer.
If you think you have been unfairly dismissed you should get legal advice.
Do the unfair dismissal laws cover everyone?
Certain employees are excluded from the dismissal provisions of the law.
You need to decide whether state or federal employment law applies to you. See What law applies.
Some Queensland employees are excluded from unfair dismissal provisions. They include:
- probationary employees
- short-term casuals (casual employees who have not been engaged on a regular and systematic basis, have not been engaged for several periods of employment of a least one year and does not have a reasonable expectation of further employment with the employer)
- apprentices or trainees
- contract employees and
- those earning more than $106,400 who are not employed under an award or an agreement and are not public service officers employed on tenure under the Public Service Act 1996.
If your employment is covered by federal law the following exclusions apply.
If you work for a small business with 15 employees or less you must have worked for 12 months before you can apply for unfair dismissal. If the employer complied with the small business fair dismissal code then the dismissal is not considered unfair.
If you are covered by a modern award or an enterprise agreement and not on a high income you must complete a minimum employment period of 6 months continuous service before you can apply for unfair dismissal.
You are not eligible to apply for unfair dismissal if you were employed for a specified time or a specified season or you were on a training arrangement for a specified period of time and the employment terminated at the end of the time agreed.
If you were demoted but the demotion does not involve a significant reduction in wages or duties and you remain employed by the employer that reduced the duties then you are not eligible to apply for unfair dismissal.
You are not eligible to apply for unfair dismissal if your dismissal was a case of genuine redundancy. This means the job no longer needed to be performed by anyone because of operational requirements in business and the employer has consulted about the redundancy as required by any enterprise agreement or modern award.
It is not a case of genuine redundancy if it was reasonable in all the circumstances for the person to be redeployed with the employer's enterprise or the enterprise of an associated entity of the employer.
How do I lodge an unfair dismissal claim under commonwealth law? Is there a time limit?
An application for unfair dismissal must be lodged with Fair Work Australia (FWA) within 14 days after termination of employment. The FWA can extend this period.
The FWA may dismiss an application for unfair dismissal if it is clear that:
- the employee is excluded by the legislation from bringing an unfair dismissal claim
- the case was a case of genuine redundancy
- the dismissal was consistent with the small business fair dismissal code
- the employee has not completed the necessary six month qualifying period
- the application was not made within 14 days of termination and does not warrant an extension of that time limit.
If the unfair dismissal application is accepted (i.e. it is not excluded on the grounds listed above), the FWA may decide whether to hold a hearing or a conference. At any time the FWA may decide that a conference should be terminated and a hearing held instead. After the conference the FWA decides if the matter should go on further to a hearing.
Leave to appeal from a decision made at the hearing may only be granted if the FWA considers it in the public interest, ie it is an issue that has relevance to larger numbers of people and other sectors of the community and not just your situation as an individual. If you are considering an appeal you should get legal advice.
The FWA must give permission for lawyers to be present at proceedings.
How do I lodge an unfair dismissal claim under state law?
You may lodge an application for unfair dismissal with the Queensland Industrial Relations Commission (QIRC) within 21 days after termination of employment (but the QIRC can extend this period).
Before a formal hearing is arranged, the Commission will organise a conciliation conference between you and your employer to try and settle the matter. The conference is important as it gives you a chance to come to an agreement. You and your employer get to have your say in a controlled and impartial atmosphere.
Conferences can eliminate the need for a formal hearing. In Queensland, the majority of unfair dismissal cases do not go any further than the conference stage.
If the Commissioner believes that the matter cannot be settled by conciliation or that the employee is excluded from the unfair dismissal provisions of the Act they must:
- issue a written statement explaining why they believe the matter cannot be settled or that the employee is excluded; and
- inform the parties of the merits of the application and of the consequences of further proceedings (eg costs may be awarded against either party).
The Commissioner may also recommend that the application be discontinued.
If you take no further action, your application will automatically lapse six months after the Commissioner takes the above actions. It is only when attempts at conciliation fail that the Commission, being advised by the employee that they wish the matter to go to hearing, hears the case and makes a decision.
If I have been unfairly dismissed, what remedies can I get?
The remedies for unfair dismissal may include reinstatement, back pay, or if reinstatement is not appropriate, then an amount of money to a maximum of six months wages.
The circumstances of a dismissal may also give you rights under other laws such as discrimination law. You will need advice about the best claim to make in your circumstances. This is very important, because if you make one claim, you may lose your rights to make a different claim which could have been better for you.
Who can I contact if I have been unlawfully or unfairly dismissed?
- Go to your union
- Get legal advice and if the circumstances include discrimination, sexual harassment or vilification on basis of race, religion, sexuality, gender identity, you can contact Legal Aid Queensland's anti-discrimination advice service
- Queensland Working Women's Service will assist women
- Young Workers Advisory Service will assist young people
- Fair work Australia.
If I am dismissed should I get a separation certificate?
If you are dismissed by an employer you should obtain a separation certificate just in case you want to claim benefits from Centrelink. You should also get a certificate of service detailing period of service and duties performed.
What if I have a claim for breach of contract or loss of commission?
If your employment contract has been terminated you will need to get legal advice about your options. You may have a claim for damages for breach of contract or for outstanding commission.
If you have a small claim for breach of contract or loss of commission, simplified procedures in the Fair work division of the Federal Magistrates Court and state magistrates courts can reduce the costs of the legal proceedings. The court follows informal processes including mediation in an effort to resolve the issue in a cost-effective manner. If you have a claim for loss of wages or commission get legal advice.