Unlawful Dismissal

It is unlawful for a Western Australian employer to dismiss / terminate you, victimise you or treat you less favourably than other employees because you:

  • insisted on your work entitlements;
  • made a complaint; or
  • were a particular race, colour, sex, had a sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin

It can be particularly hurtful to be treated poorly because of discrimination or when you are just asking for what you are lawfully entitled to.

If you have been terminated for a prohibited reason, you could be entitled to reinstatement, compensation for any loss of wages and damages for the effect the termination had on you. A Court can also order that your former employer pay a fine (in some circumstances to you) for breaching the law.

Nicholas Legal offers a fixed fee service for preparing and filing an unlawful dismissal claim. Call or arrange an appointment in our Perth office to discuss your claim.

Time Limits

The same strict time limits apply to unlawful dismissal (general protection) applications as apply to unfair dismissal (21 days). You will want to find out quickly if you have grounds for making and application and whether it is worth going ahead.

Do You Have A Claim?

To decide whether you might have a unlawful dismissal (general protection) claim under the Fair Work Act, a range of factors need to be considered.

Your Employer/Contractor: Were you employed or contracted by a Constitutional Corporation? A Pty Ltd company is a constitutional corporation, while a Sole Trader is not.

Adverse Action: Have you been terminated, or disadvantaged in some way, by your employer?

The Reason for your Treatment: Do you think the reason for your termination or disadvantage is because you:

  • insisted on some workplace right (eg safe work practices, annual leave, parental leave etc);
  • took part in a dispute process;
  • asked for an enterprise agreement;
  • made a complaint or enquiry about something at work;
  • asked to be represented by a union;
  • were discriminated against;
  • had to take sick leave and had proved you were unfit for work;
  • were an employee but your employer wanted you to be a contractor.

Note: the above list are examples only.  You should seek advice if you think the reason for your dismissal (or demotion etc) was unlawful.

If you answered yes to all the questions and want to talk through your issues, get in touch.

The process is started by filing an application with the Fair Work Commission. Nicholas Legal offers a Fixed Fee service for preparing and filing your application.

Unlawful Dismissal vs Unfair Dismissal

Unlawful dismissal (general protection) applications don’t have the same eligibility criteria as unfair dismissals. Unlawful dismissal may apply where the reasons for a termination are unlawful under the Fair Work Act. Unfair Dismissal laws may apply where a termination is unfair.

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