Unlawful termination under Federal law

Under Federal law all employees are protected against dismissal for certain prohibited reasons or for reasons that include the prohibited reason (under State law these reasons or grounds are incorporated into the notion of a harsh, unjust or unreasonable dismissal).

Section 659 of the Workplace Relations Act 1996 (Cth) specifies these prohibited reasons which include:

temporary absence from work because of illness or injury;
membership of a trade union or participation in union activities;
non-membership of a trade union;
acting as a representative of employees;
filing a complaint or taking proceedings against an employer for alleged violation of laws or regulations;
race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
refusal to negotiate an AWA;
absence from work during maternity leave or other parental leave; and
reasonable temporary absence from work because of carrying out of a voluntary emergency management activity.

Exceptions to these prohibited grounds arise where the dismissal was based on the inherent requirements of the particular position or in good faith to avoid injuring the religious susceptibilities of members of the religion.

Where an employee has been dismissed for a prohibited reason, they or their trade union are required to lodge an application with the AIRC within 21 days of the termination. The AIRC has discretion to vary this time limit.

Remedies for unlawful dismissal include penalties of up to $10 000, reinstatement if possible, and/or compensation. Employees, who claim that their termination was unlawful because of one or more of the prohibited grounds set out in s 659 may, if conciliation in the AIRC fails, elect to have the matter determined by the Federal Court.

Under the Workplace Relations Act an employee cannot start proceedings in the Federal Court on the grounds of unlawful dismissal and also proceed to arbitration before the AIRC on the grounds that the dismissal was 'harsh, unjust or unreasonable'. Employees must choose which of these paths to follow.

But there is an exception to this. An employee can also make a claim of unfair dismissal if the employer breaches the following provisions by failing to:

fulfil the Act's requirements to give notice of redundancies to Centrelink
fulfil the Act's requirements to give notice of redundancies to the relevant unions
give the employee sufficient notice as provided under the Act (or the equivalent amount in wages)

If the employer has failed to notify Centrelink of the dismissal, the Federal Court can impose a penalty of not more than $1000 or an order to prevent the employer terminating the employment except as per the court order.

Where an employee argues that the dismissal was harsh, just or unreasonable because of a breach of the required notice provisions by the employer, then there is no problem with the employee also arguing in the Federal Court about unlawful dismissal.