Dear customer, in relation to your important matter, the terms of the termination of your employment are subject to the employment agreement.
I would be pleased to review the contract of employment and advise you on the specifics on that agreement.
Otherwise, generally, unlawful termination is prohibited by Section 772 of the FW Act which prohibits the termination of an employee’s employment for one or more of the following reasons relating to the employee:
temporary absence from work due to illness or injury (s 772(1)(a)), within the meaning of reg 6.04 of the Fair Work Regulations 2009 (Cth) (FW Regulations);
- trade union membership or participation in trade union activities outside of working hours or, with the employer’s consent, during working hours: s 772(1)(b);
- non-membership of a trade union: s 772(1)(c);
- seeking office as, or acting in the capacity of, a representative of employees: s 772(1)(d);
- the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities: s 772(1)(e);
- race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (see Introduction to equal employment opportunity/anti-discrimination laws): s 772(1)(f)
- absence from work during maternity leave or other parental leave (see Parental leave): s 772(1)(g); or
- temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances: s 772(1)(h).
While the FW Act mostly only applies to national system employers and employees, the unlawful termination provisions apply to all employers and employees in Australia. This is because the provisions give effect to ILO Convention (No 158) concerning Termination of Employment at the Initiative of the Employer, and are supported by the external affairs power in the Australian Constitution. See Coverage of the federal system.
In practice, however, unlawful termination applications are likely to be made mainly by non-national system employees. This is in large part due to s 723 of the FW Act, which provides that a person may not apply for relief in respect of unlawful termination if they are entitled to make a general protections court application in relation to the conduct in question under Pt 3-1 of the FW Act.
An unlawful termination claim is also prohibited where the applicant has made an unfair dismissal application that has not been withdrawn or failed for want of jurisdiction or because the FWC was satisfied that the dismissal was a case of genuine redundancy; s 725, Fair Work Act 2009 (Cth)
There are many aspects to termination of an employment agreement, and if you would like to discuss this matter further by telephone, I welcome you to request those services.
If you have any further questions, I would be pleased to answer those for you.