Unlawful termination occurs when an employee’s employment has been terminated at the initiative of the Employer where the termination was based on a failure to give the Employee the required notice or payment instead of notice and/or reasons concerning alleged discrimination based on one or more of the following:
- 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;
- filing a complaint, or participation in proceedings, against an employer involving alleged breaches 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, sign, vary or terminate an individual transitional employment agreement;
- absence from work during maternity leave or other parental leave;
- temporary absence from work for voluntary emergency management activity
Unlawful dismissal claims are usually commenced in the Australian Industrial Relations Commission (AIRC) and must be made within 21 days of the termination coming into effect. The matter will then proceed to a Conciliation Conference. If the matter is not resolved at the Conciliation Conference, the Employee may then elect to commence proceedings in the Federal Court of Australia seeking compensation for the unlawful dismissal.