Losing your job can be a really hard and stressful experience. If you think you have been fired unfairly or for the wrong reason, you may have rights under unlawful termination laws or unfair dismissal laws.
Unfair dismissal is when your employer fires you in a harsh, unjust or unreasonable manner, or when you were forced to quit because of something your employer did.
To make an unfair dismissal complaint to the FWC, you must have:
and you must:
The application must be lodged within 21 days of the day you were fired.
If the FWC finds that you have been unfairly dismissed, the FWC can:
For more information on how to apply for unfair dismissal, you can check out this factsheet.
Unlawful termination is when an employer fires an employee for an unlawful reason. If you are terminated for an unlawful reason, you may be able to make a ‘general protections’ claim.
You may have the right to make a ‘general protections’ claim if your employment is terminated because (for example):
You can read more about protections at work here.
If you think you have been unlawfully terminated, you can make an application to the Fair Work Commission (FWC) under the ‘general protection’ provisions relating to dismissal.
You have to make a claim within 21 days of your dismissal.
For more information on unlawful termination and to complete the online application form to make a claim to the FWC, you can click here.
In addition to claims with the FWC, if your employment is terminated because of a certain protected characteristic, such as your age, sex, political opinion or medical condition, you may also be able to make a discrimination claim with the relevant State, Territory or Federal anti-discrimination tribunal.
For further information on discrimination from the Australian Human Rights Commission, please click here.
If your employer has stopped rostering you on shifts at work, you may be able to make an unfair dismissal claim. This depends on whether you can prove that:
If you can show that you were consistently and regularly working each week, roughly at the same time, you might be able to prove that your employment was systematic and regular. You would also need to show that you reasonably expected that pattern of work would continue.
This issue is likely to be determined from your employment records, which would need to support your claims of regular weekly work and a minimum number of shifts per week over an extended period. If the FWC accepts that you were employed on a regular and systematic basis with a reasonable expectation that would continue, then you may be eligible to lodge an unfair dismissal complaint.
It is important to remember that casual workers have no rights to regular shift work or regular hours and so it can be difficult to prove that your employer has done something wrong.
If your employment is terminated and not all laws were followed, you may have certain other claims. For example, if your boss does not give you the right amount of notice terminating your employment, or terminates your contract before the date it was supposed to end on.
In these situations you will need to get advice from the Fair Work Ombudsman or obtain specialist legal assistance.
Employees who are entitled to notice of termination can calculate their notice and redundancy using the FWO’s Pay and Conditions Tool – Notice and Redundancy calculator, available here.
Employees can test their knowledge about pay in the FWO’s Workplace Basics Quiz, available here.
Youth Law Australia would like to express thanks to Hall & Wilcox and the Fair Work Ombudsman for assisting us with the preparation of this material.
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