If you were employed and then dismissed from your employment,you may be able to make an application to challenge the termination under the Workplace Relations Act 1996 (Cth). In certain cases of discrimination both employees and other workers, such as independent contractors, may have rights under the Equal Opportunity Act 1995 (Vic), Racial and Religious Tolerance Act 2001 (Vic), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) or Age Discrimination Act 2004 (Cth).

Harsh, Unjust or Unreasonable Dismissal

If you were an employee, you can challenge your dismissal under the Workplace Relations Act 1996 (Cth) if you believe that it was harsh, unjust or unreasonable. However there are several categories of employee who are excluded from making such applications. For example, you cannot make a claim if you were:

• employed by an employer who employed fewer than 100 employees, or
• employed for less than six months or
• dismissed for genuine operational reasons or
• serving a probationary period of employment or
• engaged on a seasonal basis or
• engaged under a contract of employment for a specified period or a specified task or
• employed under a traineeship agreement or traineeship for a specified period or
• a short-term casual employee or
• earning more than the limit specified from time to time and were not employed under an award or workplace agreement or
• pursuing other termination proceedings

For more information on unfair dismissal, speak to your union or go to the Australian Industrial Relations Commission.

Unlawful Dismissal and Discriminatory Dismissal

If you were an employee and are not already challenging your dismissal in other proceedings, you can challenge a dismissal under the Workplace Relations Act 1996 (Cth) if you believe it was ‘unlawful’ because it was for one or more of the following reasons:

1. temporary absence from work because of illness or injury
2. trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours
3. non membership of a trade union
4. seeking office as, or acting or having acted in the capacity of, a representative of employees
5. 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
6. race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
7. refusing to negotiate in connection with, make, sign, extend, vary or terminate an ITEA
8. absence from work during maternity leave or other parental leave
9. temporary absence from work because of the carrying out of a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances

For more information on unlawful dismissal, speak to your union or go to the Australian Industrial Relations Commission.

The Workplace Relations Act 1996 (Cth) also contains ‘freedom of association’ provisions which you may be able to use to challenge a dismissal if the dismissal was based on your engaging or not engaging in certain activities, (such as joining a union, being a union representative, taking industrial action, voting for a workplace agreement),  or being entitled to the benefit of an industrial instrument (such as an award or workplace agreement) or an order of an industrial tribunal, making a complaint to certain authorities, taking part in certain legal proceedings or giving evidence in certain cases.

In addition, if the dismissal was discriminatory, you may have rights under anti-discrimination laws, such as the Equal Opportunity Act 1995 (Vic), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth) or the Age Discrimination Act 2004 (Cth). For more information, see the section on Discrimination.

Termination Payments

When your employment ends, you may be entitled to various payments such as payment instead of notice, payment of the value of any accrued annual or long service leave (if you have been employed for long enough) and perhaps a redundancy payment if your position was made redundant.

For more information, speak to your union, go to the Workplace Authority or ring the Workplace Infoline on 1300 363 264.